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THE
ANCIENT HEBREW LAW
OF HOMICIDE
BY
MAYER SULZBERGER
PHILADELPHIA
JULIUS H. GREENSTONE
^%
PRINTED IN ENGLAND
AT THE OXFORD UNIVERSITY PRESS
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The following lectures were read before the
Dropsie College for Hebrew and Cognate
Learning in the months of March and April,
191 3. They belong to a series of studies in
Jewish Jurisprudence and Institutes of Govern-
ment, two of which have been heretofore pub-
lished, to wit, * The Am Haaretz — the Ancient
Hebrew Parliament', 1910, and 'The Polity of
the Ancient Hebrews', 191 2. My thanks are
due to Dr. Julius H. Greenstone, who has
prepared the careful indices to the volume.
M. S.
328559
THE ANCIENT HEBREW LAW OF HOMICIDE^
I
The law of homicide is an index to certain sides of
national character. Where there is a small, powerful class
able to monopolize rule and government, the rights of the
great mass of common people are weak and ill-assured.
In such a society there is much violence. Arrogant and
turbulent spirits are in perpetual rivalry, and compete for
mastery. The stronger steadily eliminate the weaker. Life
is held cheap. The chiefs, who are always risking their
own lives, compel their underlings, who have no great stake
in the contest, to risk theirs. It is a kind of feudal system,
in which each chief is the head of a clan or other organiza-
tion with whose aid he hopes to retain or to achieve
pre-eminence.
Out of such a condition the early laws of homicide arise.
Clans in juxtaposition are never quite at peace with
€ach other. There may be a kind of truce, but this is liable
to be broken at any moment. The murder of a clansman
by a member of another clan is castts belli, for the sufficient
reason that it weakens the assailed clan. If unpunished,
the act tends to be repeated, and this process would, in
a relatively short time, bring the weakened clan under
subjection to the aggressor clan.
* A course of five lectures delivered before the Dropsie College for
Hebrew and Cognate Learning, March 31, April 3, 7, 10, and 14, 1913.
I B
2 THE* 'ANCIENT HEBREW LAW OF HOMICIDE
In such a state of society the law of retaliation (the lex
talionis) becomes inevitable. The assailing clan must be
weakened as much as the assailed, if the latter is to retain
its relative strength and position. What we call lex talionis
is therefore, primarily, a means for the defence of the clan^
an inter-clan rule. It is one of the early stages of what we
now call international law, which even yet knows no final
arbitrament but the sword.
The period when this rule began to be applied antedates
even primitive history. We know of no stage in which
men did not form a kind of society, however small or rude
it may have been. And so soon as this point has been
reached, individual action ceases to be unrestrained, and
must accept limitations useful for society. A member of
the blood-covenant may no longer slay his fellow-member.
However determined his purpose, the hatan damim (member
of the blood-covenant guild) must forgo it when he learns
that the intended victim is also a member (Exod. 4. 24-6).^
1 The text, Exod. 4. 23-6, is of great antiquity. It refers to an early state
of the law in which for certain offences the penalty of death is imposed
on the eldest son of the criminal. If Pharaoh will not let the people go,
if he will enslave JHVH's first-born {hekor\ then JHVH will slay his
first-born {hekor). This is the primitive lex talionis, traces of which are
clear in the Hammurabi Code, §§ 116, aio, and 230.
This denunciation of punishment against Pharaoh by killing his first-
bom son brings to the writer's mind an incident in the life of Moses which
he then proceeds to relate. Moses has been guilty of some delinquency
which was doubtless plainly told in the old narrative but is here omitted.
The Rabbis inferred that when Moses married the daughter of Jethro, the
latter as a condition of his assent stipulated that the first-born son of the
union should be brought up as a Gentile. Hence the boy Gershom was
not circumcised (Ginzberg, Legends of the Jews, vol. II, p. 328). As JHVH
claimed the first-born of all Israel as his, the failure of Moses to circumcise
Gershom was to be punished by the death of the latter. The quick mother-
wit of Zipporah saved the situation. She circumcised the boy, cast the
foreskin at JHVH's feet uttering (for the boy) the proper formula: * Now
THE ANCIENT HEBREW LAW OF HOMICIDE 3
From the very beginning of organized society, there
must have developed two sets of laws, one for those within /
and the other for those without the clan. The latter is ^
simple and short. A member of clan A has weakened
clan B by killing one of its members. Clan B must
retaliate by weakening the aggressor clan at least as much.
This policy, however wise as against another clan, would
be ruinous if applied within the clan. One member has
killed another, and has thereby reduced the strength of the
clan. If the aggressor be killed, its strength is further
reduced. The direct clan-interest is that the aggressor
be kept alive, unless he is likely to further imperil the
community. It is this contingency which creates a necessity
for devising a lesser punishment than death for homicide
within the clan, and hence is evolved the system of imposing
a money penalty on the homicide — wergild. It is this
contingency, too, which creates a necessity for ascertaining
the circumstances of the tragedy and its underlying motive.
Hence follows a subdivision of homicide into murder, which
even within the clan may continue to be a capital offence,
and manslaughter, which may readily be compounded for.
Two systems of homicide law are thus made more or
less co-existent: an external homicide law, which is the
lex talionis^ a kind of war, and an internal homicide law,
which seeks to ascertain the very right of each case — what
we would call justice.
This CO- existence of two discordant systems of law in
each of the many clans composing a state or kingdom, tends
art thou of blood-covenant {hatan dantim) with me ! * JHVH forbore his
purpose. And then follows the explanation that circumcision constitutes
blood-covenant, with the necessary implication that blood-covenantees may
not for any cause kill each other.
B 2
4 THE ANCIENT HEBREW LAW OF HOMICIDE
Steadily to undermine the lex talionis. With the progress
of the state, the relations of its several parts become
closer and closer, and the comity between them increases.
The justice of the internal law becomes more and more
apparent, and with the growth of peaceful relations between
the several clans, the idea of the unity of the state is
strengthened. The feeling which individuals had for their
clan is gradually transferred to the state or kingdom, and
it is seen that all the clans together constitute one great
clan, which is called the state. When this point is reached
the lex talionis dies a natural death.
This progress, though curtly described, is very slow,
and is reached, not by a leap, but by slow stages. For
long ages the lex talionis continues to be recited as regulating
the relations of men within the clan, and yet it is all the
while undergoing decomposition. The Code of Hammurabi,
if taken literally, would present a shuddering spectacle.
Its notions of retaliation betoken fierce barbarism. It is
reasonably certain, however, that in very early times its
crude literalness was modified, and that the law as ad-
ministered in later ages was far different from the bald
meaning of its words. The marked intermediate stage,
which is most important in the consideration of our subject,
may be called the wergild stage, or, to use the Hebrew
term, the kofer stage.
When a kingdom has travelled a certain distance on
the road to unity, it perceives that a state of war between
its parts, however mild or modified, is injurious to its
progress. The same necessity which compelled the clan
to work out an internal homicide law milder than the
external homicide law, presses upon the state. For its
purposes the several clans cannot be hostile to each other,
THE ANCIENT HEBREW LAW OF HOMICIDE 5
but must constitute one great national family. The dis-
tinction between external homicide law and internal
homicide law cannot exist for it. Human nature, however,
is more powerful than governmental logic ; ancient notions
and customs are not to be done away with in a day, nor
can hereditary feuds be converted into brotherly feeling
by mere fiat. Force is necessary, and the growing state
exerts it to prevent bloody inter-clan feuds. The first mode
of prevention is always the insistence on zvergild between
the two clans, that is, the injured clan, instead of going
to war, must accept a money composition for the loss of
its member. The central state must, however, have acquired
great stability and power before it can effect this end.
When this stage is reached, the kingdom has surmounted
a danger leading to disintegration. By way of compensation^
perhaps, this improvement leads to another danger. Wealth
has acquired a new force. It now enables its owner to kill
the member of another clan with much less danger to his
own life than before. With the growth of a state's wealth
this peril grows more and more formidable. Hired assassins
will form a class, and individual safety will be greatly
impaired. The weakness of the kofer system will become
more and more apparent, and the moral power of the
internal homicide law will make its way.
When the proper point is reached, the state overthrows
the kofer law and substitutes for it the inquiry into the
circumstances and motive of every homicide, which results
in the doctrine that homicide is so great an offence against
the state that the private wrong is submerged, and that
it is incapable of private composition, no matter what the
reparation offered. Then only is the state fully organized
to carry on a civil government.
6 THE ANCIENT HEBREW LAW OF HOMICIDE
We have no adequate means to ascertain when the
pre-Hebraic inhabitants of Palestine passed through these
stages. The probability is that long before they were
conquered by the Hebrews they had reached the wergild
stage.
The Code of Hammurabi of Babylonia {circa 2250 B. C.)
has as yet no general state-law punishing homicide. This
crime must therefore have been under the jurisdiction of
recognized constituent elements of the state, such as clans
or the like, which severally protected their clansmen's lives
against assault from without and within. There are indi-
cations that the kofer stage had been reached.
The Hebrew tradition is that the state was formed at
the crossing of the Jordan ; and by the formation of the
state we mean that every male Israelite became a member
of a great national blood-covenant which, theoretically at
least, overrode all ties of family, clan, or tribe. At Gilgal,
before the campaign for the conquest of Canaan began,
this great covenant between all Israel and JHVH was
entered into (Josh. 5. 2-9). Pesah was celebrated (5. 10-12),
and JHVH, by special messenger {sar-seba-J H V H)^ ratified
the covenant, and in symbolical language welcomed the
new-comers to the land of JHVH, which had become holy
in fact by the entrance of the covenant people.
In the course of lectures delivered before this College
last year, my endeavour was to show that the pre-Hebraic
inhabitants of Palestine were politically organized into
small city-kingdoms ; that the Hebrews, when they con-
quered the land, accepted the system, but did away with
the kings, converting the petty kingdoms into cantons or
districts, which continued to be called cities (arim)^ and
that these became the constituent elements of the Hebrew
THE ANCIENT HEBREW LAW OF HOMICIDE 7
State, abolishing, in theory at least, the former dividing
lines of family, clan, and tribe.
The process of forming this new Hebrew state lasted
for more than two centuries. The settlers advanced further
and further, coming into closer and closer contact with the
natives. Ancient Canaanite modes of thought impregnated
the settlers' minds, and both in religion and in law Canaanite
views struggled with Hebraic principles. How bitter the
contest was the whole Hebrew literature shows. Though
in the view of practical statesmen Hebraism in the end
triumphed, both in church and state, yet the idealists were
so dissatisfied with the Canaanitic alloy, which always more
or less manifested itself, that a reader of the prophetic
discourses might almost be misled into believing that Baal
had borne off the victory from JHVH, and that the ancient
codes had crowded out the Torah.
Our present task is to show the contest between the
Hebrew law on the one side, and the Canaanite practice
on the other ; to point out that the zikne ha-ir, infected
as they were with the old Canaanite notions and practices,
had to be restrained and corrected, at first by federal
delegates, and when this measure proved inadequate, had
to be deprived of large and important items of legal juris-
diction, which were transferred to federal courts, and then
to make clear that for the unity of the state it finally
became necessary to deprive the zihie ha-ir of all important
judicial functions, and to establish a complete system of
federal courts, sitting in every Hr^ and thus bringing the
Hebrew law home to every corner of the kingdom.
In the investigation of this movement we have chosen
to begin with the law of homicide, not only because of its
fundamental importance, but also because the Torah gives
8 THE ANCIENT HEBREW LAW OF HOMICIDE
fuller and more detailed information on this branch of
jurisprudence than on any other subject of the criminal
law. This valuable feature of the Tor ah must not, however,
blind us to the fact that its statement of the law on any-
subject is not exhaustive. The Hebrews had for ages lived
a settled pastoral life in a portion of the Egyptian kingdom
expressly assigned to them. While subject to the laws
of the Empire, they had a numerous community of their
own, among whom grew customs and observances which
were, in effect, a kind of internal law. The tradition was
that they were governed by elders. At the very beginning
of the public career of Moses and Aaron, they submitted
their plans to this body (Exod. 4. 29-30; 12. 21 ; 17.6; 19. 7).
The oral or customary law which thus naturally grew
among the Hebrews in Egypt is nowhere recorded. It was
a Torah she-be al peh, which, with them, as with all other
nations, preceded any written code. Nor did the written
code, Torah she-bi-ktab, when it came, stop the further
development alongside of it, of the old Torah she-be'^al peh.
New and unforeseen circumstances would arise which had
to be met by the tribunals, and their decisions, from the
time when the Oracle took jurisdiction of certain cases
down to the latest period when judges of ordinary law-
courts presided, constituted an ancillary body of oral or
common law.
We are not without specific evidence on this subject.
An examination of the texts of the Pentateuch relating
to homicide discloses the fact that their contents are of
two diverse kinds, one of them being in the dogmatic form
of mishpatim (statutes), and the other of them torot^ or
summaries of the facts and the law of cases, in the manner
of the syllabi of our law reports.
THE ANCIENT HEBREW LAW OF HOMICIDE 9
Nor is this a peculiarity of the law of homicide. There
are in the Torah at least four other instances of reported
cases: the case of the blasphemer of the Shem (Lev. 24.
10-16), that of the Sabbath-breaker (Num. 15. 32-6), that of
Zelophehad's daughters (Num. 27. i-ii), and the second
case of Zelophehad's daughters (Num. 36. i-io). In each
of these the facts are narrated and the principle of the
decision announced for guidance in the future. They
constitute what we call case-law, as distinguished from
statute law, and what the Hebrews call Tahmid, in contra-
distinction to mishpatim or Torah. The memory and results
of this steady accumulation of case-law during a period of
perhaps fifteen hundred years are preserved to a small
degree in the Bible, and to a much greater degree in the
Talmud. It is to be hoped that studies in the vast field
of Talmudic literature may give us light on many subjects
of which we are, at present, wofuUy ignorant. We are not
able to show the contents of the ancient pre-Mosaic oral
law, and cannot therefore pretend to give its provisions
in relation to homicide. It is, however, fair to assume that
the written law was, in the main, declaratory of the oral
law that immediately preceded it. Such, indeed, is the
history of law in all ages and among all peoples. The
human nature of great masses of people prevents the sudden
overturning of a body of ancient habits by mere fiat, and
the substitution for them of strange customs contrary to
inherited notions.
It is from the written law — from the Torah — that we
must learn the law of homicide : what constitutes the offence,
how the perpetrator is to be ascertained, and when ascer-
tained, how he is to be punished.
Each of the five books of the Torah, from Genesis to
lO THE ANCIENT HEBREW LAW OF HOMICIDE
*
Deuteronomy, contains passages bearing on these interesting
questions. The references in Genesis are most widely-
known and quoted, not because they are parts of any legal
code, properly so called, but because they announce broad,
general principles, the result of philosophical reflection, and
therefore appeal to a large circle who would be repelled
by a statement of practical law. From their nature they
are fitter for consideration, after we shall have made a study
of the book, than as an aid in the preliminary work.
It is from an examination of all this material that we
are to learn the Hebrew law of Homicide. This study
would, however, be but partial and imperfect unless we shall
at the same time endeavour to ascertain the state of the
law upon that subject among the people whom the Hebrews
conquered. For this there are but two sources : one the
Hebrew law itself, in so far as it discloses the nature of
the native law which it was combating, and the other
the code of Babylonian law, known as the Hammurabi Code,
said to have been promulgated by Hammurabi, King of
Babylon, about 2250 B.C. It was in the year 1902 that
M. de Morgan, while excavating the acropolis of Susa,
found three large fragments of a block of black diorite.
When joined, they formed a pillar about seven feet high,
and tapering from seventy-one inches to sixty-two inches.
At the upper end of the front side was a bas-relief
representing the seated sun-god Shamash, presenting the
code of laws to Hammurabi. Then follow on the same
side sixteen columns of writing, and on the reverse side
twenty-eight columns. On the front side five columns of
writing have been erased. When complete the inscription
probably contained forty-nine columns, four thousand lines,
and about eight thousand words. It is from this inscription
THE ANCIENT HEBREW LAW OF HOMICIDE 11
in the Babylonian language that the Code has been carefully-
studied by experts, many of whom beheve that it exerted
a powerful influence in shaping legal doctrines and customs
in all Western Asia, as far as the Mediterranean Sea. If
this view be correct, the Code would be some index at least
of the character of the law which the Hebrews encountered
and finally overcame.
Before entering on the subject, it may be well to reflect
that in the natural course of events, the law of Hammurabi
must have undergone changes both in Babylonia and in
Assyria. All communities must, in a considerable degree,
make their laws conform to the necessities of national life,
and there is no ground for believing that these great states
were, in this respect, exceptional. The fact that the old
code was for two thousand years treated with religious
reverence is entirely consistent with the obsolescence of
some of its provisions.
In discussing this ancient code, I make use of the
excellent work of Professor Rogers, Cuneiform Parallels
to the Old Testament (New York, 19 12). The Code of
Hammurabi is there estimated to have contained two
hundred and fifty-two sections, of which thirty-five (those
between Sees. 6^ and 100) have been erased.
We find but eleven sections in anywise bearing on
homicide. They are the following :
Section 153. If a man's wife cause her husband to be
killed for the sake of another man, they shall impale that
woman.
Sec. 207. (The subject of this section is introduced by
the preceding section, which is given here for the
better understanding of the matter : Sec. 206. If a
man have struck a man in a quarrel, and have
12 THE ANCIENT HEBREW LAW OF HOMICIDE
wounded him, he shall swear, ' I did not strike him
intentionally', and he shall be responsible for the
doctor.)
If he die of the blows, he shall swear, and if he be of
gentle birth he shall pay one-half of a mina of silver.
Sec, 208. If he be the son of a freedman, he shall pay
one-third of a mina of silver.
Sec. 210. (The subject of this section is introduced by
the preceding section, 209, which is as follows:
Sec, 209. If a man have struck a gentleman's daughter
and have caused her to drop what was in her womb,
he shall pay ten shekels of silver for what was in her
womb.)
If that woman have died, they shall put his daughter
to death.
Sec. 212. (Sec. 211. If through blows he have caused
the daughter of a freedman to drop what was in
her womb, he shall pay five shekels of silver.)
If that woman have died, he shall pay one-half a mina
of silver.
Sec, 214. (Sec. 213. If he have struck a gentleman's
maid-servant, and have caused her to drop that
which was in her womb, he shall pay two shekels
of silver.)
If that maid-servant have died, he shall pay one-third
of a mina of silver.
Sec. 229. If a builder have built a house for a man, and
have not made it strong, and the house built have fallen
and have caused the death of the owner of that house, that
builder shall be put to death.
Sec. 230. If he have caused the death of a son of the
owner of the house, they shall put to death a son of that
builder.
THE ANCIENT HEBREW LAW OF HOMICIDE 13
Sec, 231. If he have caused the death of a slave of the
owner of the house, he shall give to the owner of the house
slave for slave.
Sec. 251. If an ox given to goring belong to a man, and
have shown to him this vice that he is given to goring, but
he have not bound up his horns, and have not shut up his
ox, and that ox have gored a man of gentle birth and have
killed him, he shall pay one-half of a mina of silver.
Sec. 1^1. If he be a gentleman's slave he shall pay
one-third of a mina of silver.
There is here no hint of a general law of homicide. If
a man, having a grudge against another, would hide himself
and lie in wait for his coming, and then would fatally stab
him in the back, there is nothing in the Hammurabi Code
entailing any punishment for the act.
This means not that such atrocious deeds were approved
or condoned, but that the state had not yet accepted as
part of its function the protection of the lives of its citizens
in general. Nor does it mean that every individual man
was left to look out for himself, without help from anybody.
No great state could live in such rank disorder. The
reasonable inference is that minor corporations, such as
families, guilds, or clans, had jurisdiction over homicide.
Strangely enough, the Code itself gives no information,
direct or indirect, upon the subject. The eleven provisions
cited throw no light upon it.
Section 153, punishing by impalement a wife who causes
her husband to be killed for the sake of another man, is not
a homicide statute in the proper sense of the word. The
wife who is to be so horribly punished has not herself
committed the murder. She has procured another to do
14 THE ANCIENT HEBREW LAW OF HOMICIDE
the deed. There is no provision in the Code for punishing
the actual murderer. It is thus seen that the crime of the
wife is her treason, her breach of marital fidelity. Indeed,
it would seem that if she procured the death of her husband
for any cause other than her preference for another man,
the statute would not apply.
Sections 207 and 208 refer to quarrels. The law on
this subject is, generally, that if a man is wounded in a
quarrel, and the party wounding him swears that he did
not intend to inflict a wound, he suffers no other penalty
than the payment of the doctor's fees. If, however, death
ensues, the penalty is adjusted according to the social status
of the victim. If he be of gentle birth, the penalty is a half
silver mina ; if a freedman's son, a third of a silver mina.
In this case the homicide is viewed as accidental. It is
not looked on as a crime, but merely as a trespass for which
damages must be paid to the representatives of the deceased.
As to the amount thus paid, we learn from Section 252
that the conventional value of a slave was one-third of a
silver mina. The penalties imposed for accidental homicide
were looked upon as mere compensation for loss sustained,
and included no punitive element whatever.
Sections 210, 212, and 214 refer to blows inflicted on
a gravid woman. The sections are obscure, and no light
is thrown upon the peculiarity of a man's striking a woman
in that condition. If we fully understood the technical terms
of the Code, we would probably conclude that the cases do
not refer to a quarrel between the man and woman, but to an
accidental blow received by the woman while the men were
quarrelling with each other. Be that as it may, if the
consequence of the blow be a miscarriage whereby the child
is lost, the amount to be paid is, in the case of a gentle-
THE ANCIENT HEBREW LAW OF HOMICIDE 15
man's daughter, ten shekels of silver, and in the case of
a female slave, two shekels of silver.
If, however, the death of the woman ensues, the punish-
ment is adjusted according to the social status of the victim.
If she be a gentleman's daughter, the daughter of the
assailant is to be put to death ; if she be a freedman's
daughter, the assailant pays as compensation one-half silver
mina ; if a slave, one-third silver mina.
The death penalty thus imposed in one case, not on
the perpetrator, but on his daughter, indicates that there
is involved no notion of a crime against the state. All the
other penalties are paid as compensation to the survivors
of the deceased. One may fairly suppose that by this
ancient law the father of the deceased woman was entitled
to kill the daughter of the assailant, and that this was
supposed to be exact compensation. As you have killed
my daughter, we will, if I kill your daughter, be even.
It is not the state which inflicts the death-penalty on
the innocent daughter, whose father, even, has not com-
mitted a crime. If he had struck a man with the same
result, he would merely have paid the conventional value
of the deceased. The inference is easy that the dead
woman's father could barter his right to kill the assailant's
daughter for a reasonable kofer, to be agreed upon between
the parties, or perhaps to be adjusted by a tribunal. The
effect of this apparently dreadful law would then be that
the assailant could not be discharged by the payment of
the conventional half silver mina, but would have to pay
punitive damages in addition thereto. The pervasiveness
of money damages in the Code would seem to warrant the
conclusion that in the course of time the literal meaning
of the Code would be modified in this direction.
l6 THE ANCIENT HEBREW LAW OF HOMICIDE
Sections 2>2,g, 230, and 231 refer merely to one class of
persons, — builders whose structures fall down and hurt
somebody. If the owner is killed, the builder is put to
death ; if the owner's son is killed, the builder's son is put
to death ; if the owner's slave is killed, he shall furnish
another slave in his stead. There is here no pretence of
a crime. The builder has been guilty of an error of judge-
ment, or, at worst, of some degree of negligence. He
certainly never intended to kill any one.
The penalties show that the law does not treat the
builder as a criminal. Otherwise his son would not, in
a certain eventuality, be put to death, while he is allowed
to go unpunished.
From the fact that builders are the only class selected
for this sort of legislation, there must have been some
peculiar reason which is not at present ascertainable.
For the rest, we may be reasonably certain that in
course of time the practice oikofer also prevailed in this
class of cases.
Sections 251 and 252 cover the case of a known goring
ox allowed by his master to roam at large without his
horns bound. There the owner, by reason of his negligence,
must pay to the family the conventional value of a member
thereof who has been killed by the ox_, — a half-mina of
silver for a gentleman, a third for a slave. Punitive
damages there are none.
In none of these cases (except perhaps that of the
faithless wife) is there any evidence that the state looked
upon the acts punishable by death as crimes against the
state, or indeed as anything but private trespasses against
individuals. Nowhere is there any consciousness that the
intent to kill is a proper subject of inquiry, or that the
THE ANCIENT HEBREW LAW OF HOMICIDE 1 7
presence or absence of such intent is of any moment.
Nowhere is there a hint of any public duty or any public
officer to enforce the death penalty.
The reasonable conclusion is that all of the acts above
enumerated, punishable by death (except perhaps that of
the faithless wife), were looked upon as mere civil trespasses ;
many of them, by the very terms of the Code, adjustable
by money settlements, and the rest, in the course of time,
falling under the same rule.
In their origin these laws were doubtless parts of a
comprehensive system of retaliatory jurisprudence. In
order to realize this fully, it will be useful to give certain
additional sections of that Code, closely related in spirit
to those already cited.
Section ii6. If the one seized die in the house of him
who seized him, of blows or of want, the owner of the one
seized shall call the merchant to account, and if it be the
son of a freedman that died, they shall put his son to
death . . .
Sec. 19:^. If the son of a chamberlain or the son of
a vowed woman have said to the father who reared him
or to the mother who reared him, * Thou art not my father ',
* Thou art not my mother ', they shall cut out his tongue.
Sec. 193. If the son of a chamberlain or the son of
a vowed woman have known his father's house, and have
hated the father that reared him and the mother that reared
him, and have gone back to his father's house, they shall
pluck out his eye.
Sec. 194. If a man have given his son to a wet-nurse,
and that son have died in the hands of the wet-nurse, and
the wet-nurse, without consent of the father and mother.
18 THE ANCIENT HEBREW LAW OF HOMICIDE
have substituted another child, they shall call her to account ;
and because, without the consent of the father and mother, she
has substituted another child, they shall cut off her breasts.
Sec. 195. If a man have struck his father, they shall cut
off his hands.
Sec. 196. If a man have destroyed the eye of a gentle-
man, they shall destroy his eye.
Sec. 197. If he have broken a gentleman's bone, they
shall break his bone.
Sec. 200. If a man have knocked out the tooth of a
man of his own rank, they shall knock out his tooth.
Sec. 202. If a man have struck the person of a man who
is his superior, he shall receive sixty strokes with an oxtail
whip in public.
Sec. 205. If a gentleman's slave have struck the cheek
of a freedman, they shall cut off his ear.
Sec. 218. If a doctor have operated with a bronze lancet
on a gentleman for a severe wound, and have caused the
gentleman's death, or have removed a cataract with a bronze
lancet, and have destroyed the gentleman's eye, they shall
cut off his hand.
Sec. 226. If a brander, without the consent of the owner
of a slave, have made a slave's mark unrecognizable, they
shall cut off the hands of that brander.
Sec, 253. If a man have hired a man to oversee his field,
and have furnished him with seed-grain, have entrusted him
with oxen, and have contracted with him to cultivate that
field, and that man have stolen the seed or the provender
and it be found in his hands, they shall cut off his hands.
Sec. 282. If a slave have said to his master, * Thou art
not my master ', they shall call him to account as his slave,
and his master shall cut off his ear.
THE ANCIENT HEBREW LAW OF HOMICIDE 19
The perusal of these provisions arouses a feeling of
repulsion. We are apt to forget the slow steps by which
mankind has been educated. It need not be doubted that
when primitive man, before organized society, suffered
injury at the hand of another, he sought revenge by
inflicting on his enemy all the harm he could. The idea
of limiting the punishment to the exact measure of the
offence betokens the birth of moderation and of justice.
The crude notion that human law can make good human
wrong is pathetically ineradicable. The lex talionis which
shocks us is built on this insecure foundation. The ex-
perience of mankind shows that in measuring punishments
the feelings or desires of the injured party must be brushed
aside as irrelevant, and that nothing can be considered but
the interests jif-society as- ^wliole. The realization of this
truth has always destroyed the lex talionis, that is, has
substituted for specific retaliation, in which there is present
a spice of personal malice, general retaliation, which punishes
the culprit, but only so much and in such manner as
comports with the welfare of society.
When we reflect on these things, we shall be the more
ready to do justice to the men of the remote past, who were
more like us than we are always ready to admit.
The retaliation statutes of Hammurabi, which we have
quoted, were doubtless produced by the conditions of the
time.
The readiness to mutilate men evinced in this series of
laws, indicates a callousness that may give a clue to their
origin. In the military camp, where power dwells in a
single person, and instant obedience is indispensable, the
spirit of such laws is generated. It is difficult to believe
that they were not, as time went on, modified to suit
C 1
20 THE ANCIENT HEBREW LAW OF HOMICIDE
a more peaceful environment. Whether this was or was
not the case, the fact stands out clear as respects homicide,
that under the Hammurabi Code the state had not yet
conceived it as a crime cognizable by it alone, in which no
private right can be recognized, and in which every private
wrong has been merged.
There is one other feature of the Hammurabi Code
which is to be noted, namely, the distinction between a
superior class of 'gentleman' and the rest of the people.
The distinction is presei-ved all through the law of homicide
and the lex talionis. That the Palestinian farmers in the
twelfth or thirteenth century B. C. had this sharp distinction
of classes is very doubtful. The great probability is that
the gentleman's law did not seriously affect them, and
that we must look to the common people's law if we would
get an idea of the Hammurabi influence in Palestine.
From this it appears that though the loss of a gentle-
man's eye was punished by the loss of the aggressor's eye,
and the shattering of a gentleman's limb was punished by
the shattering of the aggressor's limb, yet if these trespasses
were committed against a poor man, the aggressor paid him
one mina of silver (Sec. 198), and if they were committed
against a slave the penalty was half the price of the slave,
to be paid, of course, to the master (Sec. 199).
The deprivation of a tooth in an equal involved the loss
of the aggressor's tooth, but a poor man's tooth was atoned
for by one-third of a mina of silver (Sec. 201). The death
by blows of a gentleman's gravid daughter entailed the
death of the assailant's daughter, but if it was a poor
man's daughter who died, half a mina of silver paid for her
(Sec. a I a), and if she was a slave, one-third of a mina of
silver was enough (Sec. ^14).
THE ANCIENT HEBREW LAW OF HOMICIDE 21
Even the doctor who lost his hand when his gentleman
patient lost his eye, paid only half the price of the slave
if the latter had suffered the same misfortune, the payment,
of course, being made not to the victim, but to his master
(Sec. 2ao).
The inference seems reasonable that, if the Hammurabi
law exerted considerable influence in Palestine, its probable
effect was to establish a general custom of money settle-
ments for all kinds of trespasses, from a blow to wilful
murder.
As regards the HebrewMw of homicide, you are all
familiar with that one of the Ten Commandments which
in two words forbids murder, lo tirsah (Exod. 3o. 13 ;
Deut. 5. 17). While it, like the other commandments, is
a pregnant memorandum of human duty, it can scarcely
be called a law, in the ordinary sense, since it denounces
no punishment for infraction. In all human societies it has
been found that merely telling men what they should do,
or what they should refrain from doing, is inadequate to
guard society against the hostile acts of individuals
dominated by anger, greed, lust and other violent passions.
However insistent certain theorists are on trusting to the
spiritual strength of every individual to assure his right
conduct, practical statesmen and legists have always deemed
it necessary to make the element called ' sanction ' a neces-
sary feature of law. ' Sanction * means that part of the law
which fixes a punishment for its infraction.
It is with the Pentateuchal laws of homicide, which
include this indispensable element, that we deal.
The first group of them is found in Exodus, chapters ai
and IQ, ; the second group in Leviticus, chapter 24 ; the third
group in Numbers, chapter 0^^ ; the fourth in Deuteronomy,
22 THE ANCIENT HEBREW LAW OF HOMICIDE
chapters 4, 19, and iZ/, and then there is a supplemental
group in the Book of Joshua, chapter i^o.
We sliall now give these texts in fulJ, in the following
order : first, the Exodus texts ; second, the Deuteronomy-
texts ; third, the Numbers texts ; fourth, the Joshua texts ;
and fifth, the Leviticus texts. In choosing this order of
presentation, it is necessary to remark that our purpose
is not to ascertain the dates of texts, but the probable
course of development of institutions. It may be that
there are elements of various ages in the same text, so
that one treated lower down may contain material as old
or older than one earlier considered. The vast work done
by experts in the literary field will enable any one who
is interested in that phase of the subject to find ample
guidance and instruction.
The Exodus Texts
Exod. 21. 12-14. He that smiteth a man {makkeh-ish) so
that he die, shall be put to death. But if a man lie
not in wait {lo sadah), but God deliver him into his
hand {Jia-Elohim mnah le-yado), then I will appoint
thee a makoni whither he shall flee. If, however,
a man come presumptuously {yazid) upon his neigh-
bour to slay him with guile {be-onnah), thou shalt
take him from mine altar for death.
21. 20. If a man smite his male or female slave i^abdo o
amato) with a rod (sJiebet) that he die under his hand,
nakom yinnakeni (he must be punished).
21. 21. But if he continue a day or two, lo ytikkam (he
need not be) ; it is his money (kesef).
21. 22. If men strive and hurt a woman with child so
that her fruit depart, but no ason follow, ^anosh ye-
THE ANCIENT HEBREW LAW OF HOMICIDE 23
'^miesh (he shall pay a fine) according to the claim of
the woman's husband so far as it may be approved
by the judges (zve-natan bi-flilim).
jzi. 123. But if ason follow, then thou shalt give nefesh
tahat nefesh (life for life).
%\. Q,^. Eye for eye, tooth for tooth, hand for hand, foot
for foot,
31. 25. Burning for burning, wound for wound, stripe for
stripe,
ijr. 28. If an ox gore a man or a woman that they die . . .
'2,1. 2g. And the ox were wont to push with his horn in
time past, and the owner was told of it and has not
kept him in, then if he has killed a man or a woman,
the ox shall be stoned and his owner also shall be
put to death [yumat),
21. 30. If, however, a kofer be acceptable (to the injured
family), he may pay it and save his life.
21. 31. In the case of a son or daughter so killed, the law n^
{mishpat) is the same.
31. 32. In the case of a male or female slave so killed,
he shall pay the master thirty shekels of silver and
the ox shall be stoned.
22. I (2) . If a thief be found breaking in and be smitten so 1
that he die, for him there is no damim (blood-guilt).
22. 2 (3). Unless the sun have risen, in which case there
is damim (blood-guilt) for him.
The Deuteronomy Texts
The Deuteronomy texts are as follows :
Deut. 4. 41. Then Moses set apart three cities east of Jordan.
4. 42. That the roseah might flee thither who should
kill his neighbour bi-bli-ddat (unwittingly), not hating
24 THE ANCIENT HEBREW LAW OF HOMICIDE
him {lo sone-lo) before, and fleeing to one of these
cities may live.
4. 43. Bezer (in the wilderness) in the plain country of
the Reubenites ;
Ramoth (in Gilead) of the Gadites, and
Golan (in Bashan) of the Manassites.
19. ^. Thou shalt set apart three cities in the midst of
the land which JHVH thy Elohim giveth thee
(Canaan, the land west of Jordan).
19. 3. Thou shalt construct a road, thou shalt divide thy
land into three districts, that every slayer {roseak)
may flee thither (la-mis shamah).
19. 4. This is the law of the slayer {debar ha-roseah)^ who
shall flee thither that he may live :
Whoso killeth his neighbour bi-bli-ddat (unwit-
tingly), not hating him {lo sone-lo) before.
19. 5. As a man goeth with his neighbour to the forest
to fell trees, and his hand fetcheth a stroke to cut
down a tree, and the head slippeth from the helve
and hit his neighbour that he die, he shall flee to
one of these cities that he may live.
19. 6. Lest the go'el ha-dam pursue the roseah while his
heart is hot and overtake him, because the way is
long, and slay him {we-hikkahu 7tefesh), though it
A^iA^ I was not a case for capital punishment {mishpat
^^ ^ mawet) ; he not hating him before.
19. 7. Wherefore ... set apart these three cities.
19. 10. Let not innocent blood (the blood of the naki^
dam naki) be shed in thy land which JHVH, thy
Elohim^ giveth thee for an inheritance, and thus
blood-guilt (damim) come upon thee.
1 9. 1 1 . If a man hate his neighbour and lie in wait for
THE ANCIENT HEBREW LAW OF HOMICIDE 25
him [we-arab 16) and come upon him {we-kam
^alaiu) and kill him, and then fleeth to one of these
cities.
19. 12. The zikne-iro shall send and fetch him thence
and deliver him into the hands of the gdel ha-dam
that he may die.
19. 13. Pity him not, but put away dam ha-iiaki (blood-
guilt for the innocent) from Israel, that it may go
well with thee.
19. 15. One witness (ed ehad) shall not be heard against
any man for any ''azvon (crime) or hattat (mis-
demeanour) with which he may be charged. By the
mouth of two ^edim or of three ''edim shall the matter
(dabar) be established.
The Numbers Texts
The Numbers texts are as follows :
Numb, ^i^, II. Ye shall appoint you cities to be cities of
refuge i^are miklat) for you, that the slayer (roseah)
may flee thither who killeth any person unwittingly
{bi-shgagaJi).
2,$. liJ. And they shall be unto you cities for refuge
{le-miklat) from the^^V/, that the slayer {roseah) die
not, until he appear before the *^Edah for judgement.
'>,^, 13. And of these cities which ye shall give there
shall be six ^are miklat.
'3,^, 14. Ye shall give three cities east of Jordan and three
cities in the land of Canaan, which shall be '^are
miklat.
'>^^, 15. These six cities shall be for miklat for the Bne-
Israel for the ger and for the toshab among them,
that any makkeh-nefesh bi-shgagah may flee thither.
26 THE ANCIENT HEBREW LAW OF HOMICIDE
35. 16. If he smite him with an instrument of iron that
he die, he is a roseah ; mot ynimat ha-roseah.
'^^. 1 7. If he smite him with a stone, wherewith he may
die, he is a roseah ; mot yiimat ha-roseah,
'^^. 18. Or if he smite him with a hand-weapon of wood
wherewith he may die, he is a roseah ; mot yiimat
ha-roseah.
0^^, 19. T\\^gdelha-dam shall put \}[\^ roseah to death;
{be-fig'o bo) when he meets him he shall put him to
death.
2fS' ^o. Or if he thrust him of hatred {be-sin'aJi) or hurl
at him by lying in wait {bi-sdiyah) and he die ;
2,S' 21. Or if in enmity {be-ebah) he smite him with his
hand that he die, the smiter (ha-makkeh) shall be
put to death [mot yiimat) ; he is a roseah.
'^f^. %\\i. The go' el ha-dam shall put to death the roseah
when he meets him {be-fig^o bo).
^^. 2,2. But if he struck him suddenly without enmity
(belo-ebah) or have hurled a weapon at him (be/o-
sediyah) without lying in wait,
2)h' 23* Or without looking {beli-reot) let fall upon him
a stone wherewith a man may die and he die, not
being his enemy (oyeb), nor seeking to harm him :
^^. 24. The ^£dah shall judge {we-shafepi) between the
makkeh (slayer) and the go el ha-dam^ in accordance
with these mishpatim.
2i^. 25. Th^^Edah shall deliver the roseah from the hand
of the go' el ha-dam^ and the '^Edah shall deliver him
to his Hr miklat whither he had fled, and there he
must abide until the death of the kohen ha-gadol
(who has been anointed with the shemen ha-hodesh
(holy oil)).
THE ANCIENT HEBREW LAW OF HOMICIDE 27
^^. 26. If a roseah go out of the bounds {gebiil) of his
*2> miklat^ whither he had fled ;
'^^. %"]. And the go el Jia-dam come upon him {masd)
beyond such bounds, the go el ha-dam may put the
roseah to death iive-rasah). There will be no blood-
guilt for him (the roseah) {en lo dam). Cp. Exod.
2^. 1, 2 (:Z, 3).
^^, 1^. For he should have remained in his Hr miklat until
the death of the kohen ha-gadol. Only after the death
of the kohen ha-gadol may the roseah return to his
ahtizzah-\^nd.
35. 29. So these shall be for you hukkat-mishpat in all
your moshabot.^
^^, 30. A makkeh nefesh : By the utterance of witnesses
(lefi ''edim) shall he (the go el ha-dam) put to death
{yirsak) the roseah. One witness may not testify
in a capital case [be-nefesh la-mut).
?>S' 31 • Take no kufer for the life of a roseah, who has
been sentenced {rashd) to death {la-mut) ; he must
be put to death {mot yiimat).
'>f^. 32. Moreover, take no kofer from one that hath fled
to his ^ir miklat to permit his return into the canton
(ba-ares) (from the federal city) before the death of
the kohen,
?t5' ?)'^' Ye shall not pollute the land wherein ye are : for
blood-guilt {ha-dam) pollutes the land, and the land
cannot be purified of the blood {lo-yekuppar la-dam)
shed in it, save by the blood of him that shed it
{shofek).
2 For moshabot, comp. Lev. 23. 21, 31 ; Num. 15. 2 ; and especially
Num. 31. 10 ; Ezek. 6. 6, where the several cities are conceived as constituent
parts of larger districts called moshabot.
28 the ancient hebrew law of homicide
The Joshua Texts
Josh. 20. 2. Speak to the Bne-Israel, thus : Appoint "^are
ha-miklat whereof I spoke to you through Moses.
20. 3. That the roseah may flee thither {makkeh-nefesh
bi-shgagah hi-bli da at) ; they shall be for you miklat
from the gdel ha-dam.
20. 4. When he that fleeth to one of these cities stands
(amad) at the gate {petah shdar hair), he shall state
his case (debar aw) to the zikne ha-ir of that city.
They shall receive him into the city, and assign him
a place of abode.
20. 5. If the gdel ha-dam pursues him (and demands
his surrender), they shall not deliver the roseah into
his hand, for he smote his neighbour unwittingly
{bi-bli-ddat), not hating him before .
20. 6. He shall abide in that city until he stand (^ad^omdd)
before the ''Edah for judgement ila-mishpat) (and if
the judgement be in his favour) till the death of the
kohen ha-gadol for the time being. Then shall the
roseah return to his city and his home (to the city
whence he had fled).
20. 7. The cities appointed {wayakdishu) were :
Kedesh in Galilee, in Mount Naphtali ;
Shechem, in Mount Ephraim ; and
Kiryath Arba (which is Hebron) in Mount Judah.
20. 8. And east of Jordan :
Bezer in the wilderness upon the plain of the
Reuben tribe;
Ramoth in Gilead, of the Gad tribe ; and
Golan in Bashan, of the Manasseh tribe.
20. 9. These are the ''are ha-muadah for all the Bne-
Israel and for the ger who sojourns among them to
THE ANCIENT HEBREW LAW OF HOMICIDE 29
flee thither — every makkeh-nefesh bi-shgagah — that
he die not by the hand of the go el ha-dam until he
stand (ad'^omdo) before the "^Edah,
The Leviticus Texts
Lev. 24. 17. He that killeth any man {kol-nefesh adani) must
be put to death (mot ytimat).
%4, %i. ... He that killeth a man {makkeh adani) shall
be put to death {yttinat).
In approaching the examination of these important
texts, it is well to keep in mind that our object is to
ascertain the view of the Hebrew mind upon homicide in
general. We wish to learn, first, whether it was viewed as
a trespass against private persons, and therefore adjustable
by those immediately interested, or whether, on the other
hand, it was viewed as a crime of such gravity against the
state that the private wrong incident thereto was extin-
guished by being merged in the injury inflicted on the
state.
We ought, secondly, to determine what tribunal or
tribunals had jurisdiction of the matter, and the manner
of their procedure.
Our third point will be to discover what we may re-
specting the execution of the judgement, and, incidentally,
to learn the modes of punishment that were practised.
These inquiries, of course, relate to homicide as a legal
wrong, and not to excusable or justifiable homicide.
It is obvious that the killing of a public enemy in war
does not constitute the offence, since such enemy, so far from j
being within the peace or protection of the state, is under |
its ban, as one whom it is useful and meritorious to destroy. d
Blood so shed is called war-blood {deme milhamah) (1 Kings
/</
30 THE ANCIENT HEBREW LAW OF HOMICIDE
2. 5), and for its shedding no blood-guilt {damhn) arises
either against the individual slayer or against the community.
A striking example of this doctrine, which persists even
to our own day, is given in the thirty-first chapter of
Numbers. War having been declared against Midian, the
arch-enemy of Israel, the army gained a great victory.
When the officers reported their action, Moses was wroth
with them, because they had spared alive some that' he
deemed the most dangerous of Israel's foes.
Curiously enough, with this view of the matter there
45[as mingled another sentiment at variance with the first.
Though it was the army's duty to slay enemies at war with
the state, yet even this high purpose did not relieve the
slayer from the necessity of purifying himself, there being
implied in this the thought that homicide, however justifi-
able or meritorious, is never quite blameless.
^ Do ye abide without the camp seven days : whosoeverA
hath killed any person, and whosoever hath touched any n
slain, purify yourselves (unsin yourselves, tithatteti^ from \
het\ sin) on the third day and on the seventh day, and also Jt
your captives ' (Num. 31. 19). j^
The peace or protection of the state was, in ancient
Hebrew law, supposed to be conferred, not only by the
state directly, but by the several cantons or districts as
representing the sovereignty of the state, and also by the
king himself as the personal incarnation of the sovereignty.
One of the striking episodes of Hebrew history illustrates
this : Abner was the general-in-chief of King Saul's army,
and cousin to the king. After Saul's death and David's
assumption of the crown of Judah, it was Abner who sought
to perpetuate the dynasty of Saul by crowning Ishbosheth
king over Israel. Civil war followed, Abner leading the
THE ANCIENT HEBREW LAW OF HOMICIDE 31
forces of Saul, and Joab the army of David. They met at
Gibeon, and Abner was defeated and started to retreat.
Asahel, a younger brother of Joab, started in pursuit,
flaming with desire to meet the great warrior in single
combat. The latter declined, but the fiery youth would
not abandon his purpose, whereupon Abner accepted his
challenge and slew him (2 Sam. 2. ^-23).
Subsequently, Ishbosheth quarrelled with Abner, and
the latter, out of revenge, offered to David his sword,
and his influence to make the King of Judah King of all
Israel. His negotiations to that end being largely successful,
he, at David's invitation, visited the latter's capital, Hebron,
to close the matter. David received him with great honour,
and when the treaty was concluded, dismissed him, and he
went *in peace' {be-shalom) (2 Sam. 3. 21, 22).
When Joab returned from an expedition and learned
what had happened, he was in a fury, and angrily chid his
royal master for what he deemed a piece of atrocious folly.
He did not stop there, but sent lying messengers after
Abner to lure him back by a pretended message from
King David. They succeeded too well. Joab met him
at the gate of Hebron in pretended amity and stabbed
him to death (2 Sam. 3. 23-7) under the pretence that the
hostilities which caused Abner to slay Joab's brother
Asahel were not yet ended.
David's indignation was boundless, but he was powerless
to break with the great chieftain. When, however, his death
was near and he communicated his last wishes to his son
Solomon, he charged the latter not to let Joab's hoar
head go down to Sheol in peace {be-shalom), because he
shed war-blood {deme-milhamali) in peace {be-shalom)
(i Kings 2. 5).
32 THE ANCIENT HEBREW LAW OF HOMICIDE
The moral of this is plain. Though Judah and Israel
had not formally concluded peace at the time of Abner's
death, yet the latter was in treaty with David, had visited
Hebron on the latter's assurance, in short, was in the king's
peace and under his protection, and so being, was foully
murdered by Joab.
This doctrine of the king's peace, or the peace of the
state, as a protection against homicide, is of the first im-
portance, since its rise marks the era when homicide, from
being a private wrong, has become the concern of the
state.
An interesting old text, belonging to the zikne ha-ir
law, well illustrates that the doctrine had at an early period
penetrated to every corner of the state. It is contained in
Deuteronomy (21. 1-9).
One is found slain in the field. There is no clue to the
murderer. The peace of the state has been violated. As
the cities are near each other, accurate measurements must
be made in order to ascertain the distance between the
place of the crime and the various adjacent cities. Com-
parison of these distances establishes which is the nearest,
and upon it rests the immediate responsibility. In the
language of the day, the blood-guilt (darn) is upon it, and
in order to be relieved of this burden (forgiven, nikkaper),
solemn ceremonial disavowal is necessary. The zekenim
measure (a i . 2) ; they wash their hands over the sacrificed
heifer (21. 6) ; they make their solemn protestation of
innocence and ignorance : 'Our hands have not shed this
blood; our eyes have not seen' (21. 7). And although in
one verse (3) the shofetim are brought in, and in another (5)
the kohanim bne-Levi appear, they seem to have nothing
to do. Indeed, verse 5 is a commentarial exposition of
THE ANCIENT HEBREW LAW OF HOMICIDE 33
a reason for inserting th.Q kohanim bite-Levi, and runs thus :
* For them JHVH ih.y Elokiin hath chosen to minister unto
him and to bless by the Skem of JHVH, and. by their
pronouncement shall every controversy {rib) and every
assault inega) be decided.'
That this general assumption of responsibility for a
man's life was assumed by the state itself, is clear from
such passages as these :
*That dam naki be not shed in thy land, which JHVH
thy Elohim giveth thee for an inheritance, and so blood-guilt
{daniini) be upon thee ' (Deut. 19. 10).
' Thou shalt put away dam ha-naki (the blood-guilt for
the innocent) from Israel ' (Deut. 19. 13).
Perhaps the most striking passage on this subject is
Genesis 9. 5 : ' Your life-blood will I require from beast and
man, from every man's brother {ish ahiw) will I require the
life of a man.'
The doctrine of double blood-guilt is here clearly
indicated. There is first, the primary blood-guilt incurred
by the perpetrator, which is expressed by the first half:
* Your life-blood will I require from man {mi-yad ha-adain) ',
i. e. from the slayer. Then follows the secondary blood-
guilt of the whole community, whose bounden duty it was
to prevent, or at least to punish, the crime: *At the hand
of every man's brother {ish ahiw) will I require the life
of man.'
By this expression, ish ahiw, is meant the community
as a whole. Instances of its use in this sense are abundant,
as the passages here indicated will show : Exod. 10. 23 ;
16. 15 ; Lev. 25. 46 ; Num. [4. 4 ; 2 Kings 7. 6 ; Jer. 13. 14 ;
25. 26 ; Ezek. 4. 17 ; 24. 23 ; ZZ- 3° \ 47- H ; Hag. 2. 22 ;
Zech. 7. 9, 10 ; Mai. 2. 10; Neh. 5. 7.
S. D
34 THE ANCIENT HEBREW LAW OF HOMICIDE
The killing of a public enemy in war is, however, not
the only form of justifiable homicide. A person condemned
to death by law may, by virtue of such condemnation, be
killed by the person or persons designated by law, and
as such killing is the performance of a public duty, no
blame attaches therefor. In the case of Achan, who was
condemned to death by the oracle, the execution is fully
described. Joshua and the great council {Kol Israel) took
the condemned to the place of execution. Joshua announced
his doom in JHVH's name, and Kol Israel stoned him to
death (Josh. 7. 24, 25).
In the case of the blasphemer of the Shein^ JHVH
Himself gave directions for the execution by the 'Edah,
Moses communicated them to the '^Edah {bne-Isracl), and
they stoned the convict to death (Lev. 24. 14, 23).
In the case of the sabbath-breaker, JHVH Himself
directed that Kol ha-edah should stone him to death, and
they did so (Num. i^. '^^, ofi).
One convicted of manslaughter may, if he break the
bounds of his prison city, be lawfully executed. Such
execution is justifiable. It creates no blood-guilt (en lo dam)
(Num. ^^, 27).
Another case of justifiable homicide is when a man |
defends himself against attack which endangers his life or /
his home. If a man kills a burglar at night (before sunrise) /
while breaking in, such killing is justifiable. It creates no
blood-guilt (en lo damiin) (Exod. 22. i (2)).
We may at this point pause and, before going further,
sum up the contents of this introductory lecture.
The Hebrews in Egypt had some foim of internal
government and communal law. The latter was orally
THE ANCIENT HEBREW LAW OF HOMICIDE 35
transmitted, and presumably much of it was incorporated
in the subsequent written law. When they conquered
Palestine, they could not at once enforce this law, because
the zikne ha-ir of the various cantons had to reckon, or
thought they had to reckon, with the indigenous law which
was familiar to the large mass of Canaanites who continued
to dwell among them. The federal delegates who were
sent to the various cantons never succeeded in procuring
real compliance with the Hebrew law in many important
matters. Probably during the reign of Solomon began
a determined effort at a thorough law reform which should
sweep away the local customs and establish the supremacy
of the federal law. This movement, which lasted perhaps
a hundred years, ended in the final triumph of the federal
law, though the disruption of the monarchy during that
period retarded the full success of the movement in the
Northern Kingdom.
It is the history of this struggle for law-reform which
we shall endeavour to unravel from the texts.
D %
II
We have now reached the point when it is our business
to examine minutely the texts bearing on the subject of
homicide. One of them, however, the Exodus text, has
in it elements of complication. All the other texts are
simpler. Deuteronomy and Numbers treat of murder and
of manslaughter, Joshua of manslaughter only, Leviticus of
murder only. Exodus, however, which, like Deuteronomy
and Numbers, treats both of murder and manslaughter,
deals also with other aspects than are elsewhere considered.
We are brought (21. 20-1) face to face with the ugly
slavery question, and learn that though the slave is no
longer a mere chattel, he has not yet the full rights of a
man, and the general law does not cover his case.
We find two other exceptions to be touched upon
hereafter.
Our purpose in this course is to deal with the general
law of homicide only. There may be an opportunity at
some future time, to consider such important subjects as
slavery and its history, as indeed there are many other
questions in Hebrew law and polity worthy of study. For
the present investigation, the portion of the Exodus texts
which immediately concerns us is composed of three verses
only (Exod. 21. 12-14).
They begin with the broad propositioin Jthat a man who
kills another shall be put to death {makkeh ish wa-met^
THE ANCIENT HEBREW LAW OF HOMICIDE 37
mot yumat), which is followed by a limitation or qualifi-
cation of its generality, and this again by an emphatic
statement or definition of the original proposition as
qualified. The effect is to divide homicide into two
degrees : the first, for which the death penalty is in-
exorably imposed, we may, for convenience, call murder;
and the second, for which the death penalty is not imposed,
may be called manslaughter.
As to the quality of the offence, there is no trace of
the idea that it is a trespass merely. JHVH directs Moses
to announce these mishpatim to the community, the Bne-
Israel (20. 22 ; 21. i), and the enforcement of the law is to
be by it : I will appoint for thee the makom for the man-
slayer ; thoti shalt take the murderer from mine altar for
death. Private interests are not alluded to. Tribunals are
provided. When a Hebrew slave's term of service is to
become perpetual, the master brings him to Elohini (21.6);
when vindictive damages are to be ascertained, \.\\q pelilim
fix the amount (21. 22); a slave niaimed by his master
goes free, a right impossible to be enjoyed by a slave
without public protection ; in the only allowable case of
kofer the sum is ascertained by a tribunal (21. 30) ; a bailee
who has been robbed must appear before Elohim for judge-
ment (22. 8 (9)), and railing at Elohim when one's case has
been lost, is expressly forbidden (2!2. 27 (28)). In short,
we are dealing here with the prosecution by the common-
wealth of a high crime. As befits so serious a matter, the
definitions are painfully minute.
If a man comes presumptuously (yazid) upon his
neighbour to slay him craftily [be-ormah), he is makkeh-ish^
within the meaning of the twelfth verse, and must be put
to death (21. 14). If he have not lain in wait {lo sadah)^
38 THE ANCIENT HEBREW LAW OF HOMICIDE
but Elohim have delivered him into his hand (Jia-Elohim
innah leyadd)^ he is not a makkeh-ish within the meaning of
the twelfth verse.
The physical acts are the same in both cases, the evil
effect is the same in both cases. This old Hebrew law,^
however, treats these facts as irrelevant in the determination
of the perpetrator's degree of guilt and punishment. It
looks in this regard solely to intent, to motive. Only the
murderer forfeits his life, and this murderer is one who lies
in wait, who comes presumptuously, with a set purpose.
The words used are impressive. Lying in wait is called
sadah, the term employed to describe the wily tactics of
the hunter who pursues his game (Gen. lo. 9 ; 25. 27, 28 ;
27. Q,, ^^ 7, 33', Lev. 17. 13). There are other instances of
the use of the same word to describe a man-hunt (i Sam.
34. 1 1 ; Lam. 4. 1 8).
Coming presumptuously is called j'azid, a word likewise
used in other passages to express insolent defiance of law or
right (Deut. 17. 12, 13; 18. 20, 22; Isa. 33. n).
Coming with a set purpose is expressed by the word
be-ormah. meaning prudence, foresight (Prov. 1.4; 8. 5, 12),
or in a baser sense, craftiness (Joshua 9. 4).
The words describing the act of the man who is not
guilty of murder, but of mere manslaughter, are equally
striking. That he did not lie in wait (lo sadah) is naturally
the first and most important element of his defence. The
verse, however, goes further and says Jia-Elohim innah
ley ado {Elohim has delivered him into his hand). The
expression is one indicative of a state of general opinion
which does not hesitate to acknowledge, in a very real
sense, the government of God in human affairs. Under
such circumstances it is not unnatural, it is even logical
THE ANCIENT HEBREW LAW OF HOMICIDE 39
to conclude, that when tragedy overtakes a man with
stunning suddenness, unforeseen, unapprehended, it must
be by the act of God. Whether the tragedy results from
what we could call a pure accident, or from the sudden
conflict of two impetuous and high-strung men, who never
before had cause of quarrel, would make small difference
in such a view — the man of that day saw God's hand
equally in both cases.
This phrase, ha-Elohim innah leyado^ would come" to
have a- technical meaning among jurists, but would be so
generally understood that a definition of it would not be
thought of. Though we have no direct guidance to ascer-
tain its precise meaning, we are not entirely without aid
from other texts. There are at least two instances in which
a form of this verb anah is used in a manner that throws
light on our passage.
When Samson fell in love with a Philistine woman, he
took the first step in a course of living which finally led
to his destruction. His parents sought to dissuade him,
but the Biblical writer makes the reflection that they knew
not whereof they spoke, since it was JHVH's design to
bring Samson into hostile collision {to anah) with the
Philistines who were then lording it over Israel (Judges
14. 4).
And that the idea of a quarrel is associated with the
word is plain from the well-known story of the Syrian
general Naaman. This distinguished man was afflicted
with leprosy and could obtain no relief. A little Israelite
handmaiden of his wife told her mistress that Elisha, the
great prophet of Samaria, could cure him. The king hearing
of this, insisted on Naaman's undertaking a journey to
Samaria, at the same time giving him a personal letter
40 THE ANCIENT HEBREW LAW OF HOMICIDE
to the king of Israel, advising the latter that he had sent
his favourite general to him to be cured.
The relations between the two powers were such that
the king of Israel, when he read the letter, construed it
to be a mere subterfuge. In his consternation he rent his
clothes, and exclaimed : Am I Elohhn^ to kill or cure ?
He surely seeks to quarrel with me {mii'aimeh hu li).
Elisha, however, soon corrected the error by telling the
king that Naaman^s cure was not to be by the king, but
by the prophet (2 Kings 5. 1-8).
In both these cases there h a subtle intimation that
Divine wisdom at times foments a quarrel between persons
not hostile to each other, in order to attain ends of justice
which the narrow wisdom of human courts would be unable
to reach.
To minds that hold these views, accidents are, of course,
impossible. Everything is ordered by \.ht Elohhn, and
manJs_.responsible only for what he deliberately intends.
Hence the term ha-Elohim innah leyado comprised a toler-
ably large range of happenings, from the death of a man by
the mere slipping of his neighbour's axe from the helve,
to the killing in hot blood.
The law of Exod. 21. \i-\^ does not, however, stop
with the mere definition of homicide. It points out what
happened after a homicide had been committed. Whether
it was murder or manslaughter, the perpetrator sought
sanctuary ; that is, he went to the altar and took hold
of its horns.
The words are in the case of manslaughter: I will
appoint thee a ;;2^^^;;/, whither he shall flee (or go) (21. 13);
and in the case of murder : Thou shalt take him from mine
altar [mizbeak) for death (21. 14).
THE ANCIENT HEBREW LAW OF HOMICIDE 41
That makoni and mizbeah refer to the same place there
can be little doubt.
Before the conquest the country was divided into many
little kingdoms, called ^arim (cities), each of which had
a capital city, which was the seat of cantonal government.
At its gate sat the tribunals ; in the portion devoted to the
priests were the paraphernalia of worship. In our lectures
on Hebrew Polity we have pointed out the example of
Ophrah in the early days of Hebrew domination when the
zikne ha-ir practised Canaanite rites and administered the
law with, at least, a Canaanite infusion. The makom was
the ecclesiastical section of the capital, and perhaps no
better description of it can be given than that of Deut. 12,
where the imperative command is given to destroy every
one of them.
Ye shall utterly destroy all the mekomot^ wherein the
nations which ye shall possess served their Elohim, upon
the high mountains and upon the hills, and under every
green tree. And ye shall overthrow their altars {mizbehot)^
and break their massebot, and burn their asherhn^ and hew
down iho. pesilim of their Elohim^ and destroy their names
out of that makom (Deut. \%. 2, 3).
The elaborate furnishing of such a makom indicates that
though there may have been humble shrines, popularly
called makoiUy scattered through the country, yet the
generally accepted makom was an important place in each
canton, the capital city. Thus we read of mekom Schechem
(Gen. 12. 6), of Bethel, the makom where his (xA^bram's) tent
had been (Gen. 13. 3) ; the makom of the mizbeah (Gen.
13. 4), and again of Jacob's calling the name of the makom
at Luz, Bethel (Gen. 28. 11-19).
Perhaps the best evidence is the fact that the Jerusalem
42 THE ANCIENT HEBREW LAW OF HOMICIDE
temple, in all its glory, is spoken of by Solomon as the
makoni (i Kings 8. 29, 30, '^^,
That in the days of the zikne ha-ir the law of every
canton was administered in its own capital city cannot
be doubted. A person charged with homicide would be
tried there. If, however, there was good reason to avoid
trial, he could run to sanctuary, and it may be that he was
not limited in that respect, but could be protected if he
seized hold of the altar in the makom of any of the ''arim
in the land.
This sanctuary granted protection even to the convicted
criminal.
That the Hebrew law of homicide, as laid down in
Exodus, was based on ancient Hebrew common law is
probable. At all events, it represented the thought that
^ilful murder generates blood-guilt, not alone in the per-
petrator, but in the whole community. Translated into
modern phrase, this means that murder is a high crime
against the state, and that all elements of private trespass
and consequent damages, which would otherwise inhere
in it, are submerged and annulled.
We have heretofore enlarged upon the formation of the
Hebrew state out of the pre-Hebraic cantons (W/w), and
have shown that the town-councillors {zikne Jia-ir) in-
sensibly fell into many of the ways of Canaanite religion
and law. The formative period of the state began to show
a decided progress towards national unity as early as the
time of Samuel, but his administration and that of Saul
were too disturbed to complete the establishment of a
settled commonwealth. It was the genius of David which
completed the work. His life, however, was largely taken
up in securing his country against enemies from without
THE ANCIENT HEBREW LAW OF HOMICIDE 43
and from within. Much remained to be done. David was,
above all, a warrior, and though he had magnificent plans
for welding the state into a peaceful and harmonious whole,
their fruition was not immediate. That he had conceived
a mode of establishing the supremacy of federal law, and
that it lacked efficiency, appears from an account in
the second book of Samuel.
His son Absalom was ambitious to succeed to the throne.
He was renowned for the beauty of his person (2 Sam.
14. 25) ; he made himself conspicuous by the mode of
wearing his hair (2 Sam. 14. 26) ; he affected a state beyond
the usual custom of royal princes (2 Sam. 15. i). Above
all, he was master of the arts of the demagogue. An
incidental remark in the narrative telling of this quality,
throws light on our subject. Absalom rose up early and
stood beside the way of the gate ; and it was so, that when
any man that had a controversy {rib) came to the king
for judgement {la-mishpaf)^ Absalom hailed him : From
which *2> art thou ? And the answer came : Thy servant
is from such and such a place. Then Absalom would say :
No doubt your case is good and just, but then the king has
appointed no one to hear you. O that he would appoint
me Shofet ba-ares, so that any man that has a rib or
mishpat might come to me. I would right him. All these
men made obeisance to him, and he received them with
warm marks of affection. So acted Absalom with all Israel
that came to the king for mishpat, and, the historian adds,
so stole Absalom the hearts of anshe Israel, the leading
men of the nation.
The narrative proves that the administration of law in
the several cantons had aroused discontent, and that a
movement in favour of larger federal supervision was making
44 THE ANCIENT HEBREW LAW OF HOMICIDE
progress, or so supple a politician would not have become
its chief advocate. And there are circumstances happening
not much later which strongly confirm this view. David
died about 970 B.C. One of the first acts of Solomon's
reign was to institute a great fete at Gibeon. On that
night he dreamed that he prayed JHVH to give him a Icb
shomea\ a mind to hear and to judge [lishpot) the people,
to discern between the right and the wrong (i Kings 3. 9),
and that JHVH granted his prayer to the full 'so
that there was none like thee before nor will be here-
after' (3. 12).
And by way of illustration, there follows the story of
the two women and Solomon's wise judgement on their
dispute, and all Israel believed that the wisdom of God
was in him to administer justice (la-asot mishpat) (3. 28).
That he proceeded at once to reorganize the govern-
ment, so as to bring the central power to bear on each
corner of the state, appears from i Kings 4. And as a
result we are told that Judah and Israel dwelt safely, every
man under his vine and under his fig-tree, from Dan even
to Beersheba (1 Kings 5. 5 (4. 25)).
In the pursuit of his great federal policy, he planned to
make Jerusalem a point of attraction for every inhabitant
of the country, and for strangers from abroad. Especially
prominent was the group of great buildings of which the
Temple was the most striking and impressive. One
notable feature of his palace was the tdain ha-mishpat,
a porch for the throne where he sat as the chief judge of
the kingdom (i Kings 7. 7). Into the Temple was intro-
duced the sacrosanct Shem, the Ark of the Covenant, the
visible symbol of Divine Justice on earth (i Kings 8. 21).
And Solomon, by his prayer, indicated that thereafter
THE ANCIENT HEBREW LAW OF HOMICIDE 45
its high function of administering justice by oracle would
cease, and that ordinary courts would take its place, the
judges whereof would impose an oath [alak) upon a man
charged with injuring his neighbour, invoking God so to
order that the guilty might be convicted (le-harshid rashd)
and receive his deserts, and the innocent be acquitted
(le-hasdik saddik) as is meet (i Kings 8. 32).
These facts show the circumstances which led to
Solomon's being heralded in legend as the great juridical
genius of Israel. There is in his very name a hint that he
was determined to put an end, once for all, not only to
external wars, but to domestic disorders and feuds. Though
the boy was named Jedidiah, probably to conciliate the
turbulent Benjamite element in the state, by the adoption
of the cognomen of their eponymous ancestor (Deut. 2)'^' 12),
yet his father, seasoned old warrior that he was, had come
to see that peace was the highest ideal of a prosperous
state. And so, as his end drew near, he charged the prince
to build the Temple, which privilege, though eagerly sought,
had been denied him, because he had delighted in bloodshed
and grown great on it, and it had been reserved for a man
who would give the country repose {ish menuhah)^ in whose
reign Israel should have peace {shalom) and quiet (sheket)
(i Chron. 22. 6-9).
Solomon {Shelomd) was an appropriate cognomen for
such a man, and it was David who bestowed it on him
(2 Sam. 12. 24; I Chron. 22. 9).
It is probable that the first effort of the federal govern-
ment was to correct the cantonal government's indifference
to the offence of sarah^ which was the active and open
advocacy of Baal as against JHVH. In Ancient Hebreiv
Polity (pp. 51-61) I have shown the transfer of jurisdiction
46 THE ANCIENT HEBREW LAW OF HOMICIDE
over this offence from the zik?ie ha-ir to the Federal High
Court, there called the ''Am ha-ares. This was a measure
to protect the state against direct assault on the established
religion which was its foundation.
Security of life everywhere within the kingdom was a
matter of no less importance. To appreciate the gravity of
the question thus presented, we must try to understand the
pre-Hebraic Canaanite law of homicide.
The common notion that it was in the pure blood-feud
or vendetta stage is unsupported by adequate evidence. In
■-.placing before you the sources of our information in the
first lecture, you will remember that eleven provisions of
^le law of Hammurabi [circa 2250 B. C.) were presented,
being the only articles of that Code in any wise bearing
on the subject of homicide. They show that at the time
of the promulgation of that Code, the Babylonian state had
not yet assumed jurisdiction over homicide. The inference
is that the law of blood-feud or vendetta, in some form,
was then in force. Blood-feud or vendetta is a form of
true law. Before a state is fully organized, certain functions
which ought to be exercised by it are left to the control
of subordinate organizations within it, such as families,
clans, or guilds. Homicide is one of the subjects with
which early governments are not eager to deal.
During such preparatory stages ot" a state's growth, the \
vendetta is the only safeguard of human life. It protects I
society. Far from being an enemy of the nascent state, I
it is an effective aid to its development. So soon, however, j
as the proper stage has been reached, the vendetta law is
at first modified, and afterwards, when the state has assumed /
the whole jurisdiction over cases of homicide, it is totally 7
repealed and destroyed. Sporadic survivals here and there
f-
THE ANCIENT HEBREW LAW OF HOMICIDE 47
are in the nature of conscious crime, and in no wise impair
the force of these general rules.
The result as here sketched is inevitable. State laws
against homicide raise questions of fact and law which
cannot be determined otherwise than by regularly con-
stituted tribunals.
Vendetta law, on the other hand, is plain and simple,
and needs to make no curious inquiry into circumstances or
motives. A member of clan A has killed a member of
clan B. The latter must retaliate in kind ; for, if there
were no such redress, the injured clan would become the
mark for hostile assault from all quarters.
That state laws which punish a man for his own crime
only, cannot co-exist with a system which punishes without
regard to the question whether the victim is innocent or
guilty, is too obvious for argument.
The reticence of the Hammurabi Code on the subject
of homicide does not forbid the conclusion that the vendetta
law, pure and simple, was no longer dominant ; that though
tolerated to a degree, it had undergone modification.
It needs but little reflection to understand that the
vendetta law is, in effect, a perpetual civil war between
constituent elements of a state, and that its unbridled prac-
tice can have no other result than the destruction of the state.
The Hammurabi Code presents indications that it
realized this truth, and though it did not deal with homicide
directly, it ordered the several corporate elements of the
state to accept wergild or money satisfaction for certain^
kinds of homicide.
One who killed another in a quarrel paid to the bereaved
family or clan or guild a certain value in silver, and there
the matter ended.
^
J/
48 THE ANCIENT HEBREW LAW OF HOMICIDE
That in course of time this principle of wergild also
extended to cases of wilful murder is probable. It is not
to be believed that great states like Babylonia and Assyria
failed to change their laws from time to time. Reverence
paid to ancient codes does not mean that they retain their
pristine usefulness, or that no part of them has become
obsolete.
We may well believe that when the Hebrews entered
Canaan, a thousand years after the promulgation of the
Hammurabi Code, the latter had been essentially changed,
and that the vendetta law for murder had been materially
modified. Be that as it may, there is no evidence that
unmodified vendetta law then ruled in Canaan. Every-
where there were ordered little kingdoms whose existence
would have been daily imperilled from within had such
licence been tolerated.
The evidence of the Hebrew legislation on the subject
confirms the view that the Canaanite law of homicide was
vendetta law as modified hy svergild (kofer)- While the
kings of the various '^arim did not make homicide an affair
of the state, they nevertheless preserved the peace of the */>
by permitting the tribunals to assess the proper amount
of kofer.
This was the state of the law when the Hebrews entered
Canaan, and the whole evidence tends to show that the
zikne ha-'^ir of the various cantons failed to administer the
Hebrew law whose letter and spirit were hostile to the native
practice of kofer.
There are hints in the Biblical writings which seem to
attest the existence of the practice of kofer, and to indicate
that the makoni priests were the intermediaries who arranged
terms between the parties.
V
THE ANCIENT HEBREW LAW OF HOMICIDE 49
It will be remembered that Eli's sons and Samuel's
sons were, in the popular mind, guilty of abusing their
high positions for their own material advantage. After the
coronation of Saul, Samuel, smarting under the national
repudiation implied by the establishment of the monarchy,
delivered a farewell address, in which, with conscious
integrity, he challenged any man to point to any question-
able transaction in his long public career. One of the acts
he repudiates is the taking of kofer that blinds the eyes
(i Sam. 12. 1-5).
The Authorized Version renders it bribe, evidently under
prepossession of the idea that Samuel was a shofet in the
later sense, a judge of a law-court, and without reflecting
that Samuel was the Kohens acolyte ; that as a child
he ministered before JHVH, girded with a linen ephod
(i Sam. 2. 18 ; 3. 1) ; that he was to be a Kohen neeman
to replace Eli's sons (2. o^^, and that all Israel recognized
him as nee^nan, as a iiabi of JHVH (3. 20).
That the sons of Eli, among other things, were charged
with profiting by kofer, may be fairly assumed, and hence
Samuel's defence probably alludes to the well-established
custom of the makom priest to assist in the negotiation
between the roseah and the family ^6?'^/.
Moreover, the word kofer occurs thirteen times, and the
Authorized Version renders it ransom in eleven of them.
The only other exception is in Amos 5. 12 where it also
renders bribe.
The proper word for bribe is shohad, which means gift,
since the ancient Hebrews believed that a gift to a public
official by a person who had or was likely to have an
interest in a matter before him, was a bribe. It occurs
twenty-one times, and in every instance the odious feature
S. E
50 THE ANCIENT HEBREW LAW OF HOMICIDE
appears that it is designed to curry favour with a person in
power. The guilty (rasha)^ says Prov. 17. 23, proffers
shohad to avert justice, and Micah (3. 11) describes judicial
depravity with the bitter words : They judge for shohad.
While shohad means giving something for a considera-
tion which no man will avow, kofer conveys the idea of
a valuable consideration. The money is due as ransom,
solace or atonement for an injury committed. It is the
zvergild or damages paid by one who has killed another
to the head of the decedent's family or clan, and received
by the latter in satisfaction and discharge of all claims and
animosities.
However inveterate a custom like kofej^ may have been,
the idea that the priests would abuse their functions in
relation to it, would be sure to grow and to engender
bitterness. Popular hatred would not nicely discriminate
between shohad and the profits of kofer, and in fact we find
that Samuel's sons were charged outright with taking
shohad (1 Sam. 8. 3).
The one other instance in which kofer is rendered bribe
throws some light on the inveteracy of custom. That the
Northern Kingdom was slower than the Southern in purify-
ing the Hebrew law of Canaanite admixture, is highly
probable. Amos (about 750 B.C.) visited the Northern
Kingdom, apparently for the purpose of effecting some
reforms in that respect. That his utterances attracted
attention appears from the fact that he was directed to
leave the country, the priest of Bethel reporting to the
king of Israel that the land was not able to bear all his
words (Amos 7. 10, 12). Though not satisfied with con-
ditions in his own Judah, Amos seems to have been
horrified by what he saw in Israel. He comments par-
THE ANCIENT HEBREW LAW OF HOMICIDE 51
ticLilarly on evasions of the Torah, and gives particulars.
They sell persons into slavery w^ho are not liable to this
punishment (saddik) (2. 6) ; they violate certain purity
statutes (2. 7); they ignore the law (Deut. 24. 12, 13),
requiring that a pledged garment be put in the pledger's
possession at night (2. 8) ; they break the law (Num. 6. 3),
forbidding strong drink to Nazarites (2. 12); they mock
those who pronounce judgements according to the Torah
(5. 10) ; they convict the innocent {saddik)^ they take kofer
(5. 12). He implores them to establish mishpat (the law)
in the shciar (courts) (5. 15).
In this powerful invective he charges that taking kofeVy
though forbidden by the Torah ^ is still practised, and puts
the conviction of the innocent as an antithesis to taking
kofer y which is, in effect, letting off with a fine some who
should answer with their lives.
Vendetta law, modified by kofer, is perhaps the least
desirable of all, when a state is increasing in wealth and
power. Violence by turbulent chieftains is doubtless a
serious evil in the state, but bloodshed that may be paid
for in money by peaceful, wealthy citizens is much more J
shocking. ,^_
r "The time had come when kofer for murder had become 1
I inconsistent with the safety of the state, and Solomon [
I determined to abolish it, and to enforce the Exodus statute.^/
There is nothing in the records to show that the ^I'hie
ha-ir were deprived of their function. That federal legates
were sent to sit with them, would appear to be certain
from the zihie ha-ir law of Deut. 21. 1-9, which pre-
scribes that in murder cases where the perpetrator could
not be discovered the Kohanwi {bne-Levi) were to be
present, and that their duty was to pronounce the law in
E 2
52 THE ANCIENT HEBREW LAW OF HOMICIDE
every case, civil and criminal (kol rib ive-kol negd) (21. 5).
The broad statement of their powers seems intended to
negative any inference that their duty was limited to the
particular kind of case under discussion.
There is, moreover, no hint that the execution of any
judgement they might pronounce was to be in any new
mode. Under the vendetta-/^^/<?r law, the judgement doubt-
less was that the perpetrator of the homicide was to pay
to the^^V/of the bereaved family a certain amount specified
by the zikne ha-ir, failing which payment the go el was
entitled to put him to death. /Motive and circumstances
were not inqun*ed into. A Tailing by accident was not
dTher^fltlated Irom deliberate assassination. The great
change to be effected by the new federal movement was
•that murder was to be carefully distinguished from man-
fslaughter, and that neither kofer nor any other defence
or device could save a murderer from death. A fatal blow
was dealt the old pagan custom of sanctuary. It was no
longer to protect the murderer. Thou shalt take him from
mine altar for death (Exod. 21. 14).
Conc^riiing: jnanslaughter the matter is not so clear.
As the manslayer was still entitled to the privilege of
sanctuary, and as nothing is said about subsequent pro-
ceedings, the inference is that kofer for manslaughter was
tolerated. This conclusion is strengthened by the law
respecting the goring ox. If the master knew of his vicious
habit, and allowed him to go at large, and he killed a
person, this was held to be constructive murder by the
master, and the punishment denounced was death : * the ox
shall be stoned, and his owner also shall be put to death '
(21. 29). In this case, however, kofer is expressly allowed
(21. 30). As constructive murder is an offence of a higher
THE ANCIENT HEBREW LAW OF HOMICIDE 53
grade than manslaughter, the probability that kofer was
allowable in the latter is heightened.
It may be well worth while to pause here for a moment
for the purpose of comparing the Hebrew law's view of >
homicide with that of our modern law.
The Hebrews noted cases of voluntary and of involun-
tary manslaughter just as we do. They did not, however,
hit upon any line of division between the two. Our common
law declares voluntary manslaughter to be the unlawful
killing of another, without malice, on sudden quarrel, or in ^r^
heat of passion. Involuntary manslaughter is, where a man
doing an unlawful act, not amounting to felony, by accident
kills another.
We also have fi2£ugable_ homicide, where a man doing
a lawful act, without any intention to hurt, by accident
kills another; as, for instance, where a man is hunting
in a park, and unintentionally kills a person concealed.
This we call homicide by misadventure.
The Hebrew law put under one and the same head of
manslaughter, the voluntary, the involuntary, and the
excusable homicide of our common law. They recognized
an element of supernatural influence in them all equally,
and punished them alike.
To this general classification there were but two excep-
tions: the constructive homicide by the gpring ox, which
we have just described, and the act of men, who in a quarrel
with each other, accidentally hurt a gravid woman. The
provision is obscure and leads to the suspicion of an injury
to the text. It nowhere speaks of the perpetrator as killing
the woman, or of the victim as dying. It names two kinds
of result to the woman, one where there is no ason^ and the
other where there is ason. The term aso7i is defined a
54 THE ANCIENT HEBREW LAW OF HOMICIDE
meaning mischief, evil, harm (Brown-Driver, p. 62). That
miscarriage should be described as no mischief {welo . . .
ason)^ and that death should be described as mischief {ason)y
is certainly peculiar. The one appears to understate the
fact, the other to overstrain the w^ord. We have before us
a case which was evidently part of the Canaanite common
law. The Code of Hammurabi, as we have seen, has pro-
visions on the subject (Sections 209-14). It distinguishes
the victims into three classes: gentleman s daughter, poor
man's daughter, and gentleman's female slave. It divides ^
the effect of the injury into two classes: miscarriage and
deatfiT^For miscarriage the damages are ten shekels, five
shekels, and two shekels, according to the social rank of the
woman ; for death, the penalty, if the victim be a gentle-
man's daughter, is the death of the perpetrator's daughter ;
if she be of the other ranks, a half-mina of silver, and a third
of a mina of silver, respectively.
The Babylonian law treated the miscarriage itself as
a punishable jnischief, while the Hebrew law in its present
form, declares it to be no mischief, but nevertheless imposes
punitive damages i^anosh yeanesh). The probability would
seem to be that in the case of accidental death like this,
the general rule prevailed that the death penalty could not
be imposed for homicide, unless it was committed with
malice aforethought. The term ""anoshyeanesh would then
cover the whole case, ason or no ason. The pelilim would
make a just appraisement of the damage suffered by the
woman, if she lived, or by her husband in consequence of
her death. This would, in effect, take the case out of the
list of criminal acts and reduce it to a civil trespass, for
which damages were recoverable — a conclusion with which
our modern law might readily concur (Exod. 21. ^2-5).
vt
THE ANCIENT HEBREW LAW OF HOMICIDE 55
That the first effort of the federal government to revo-
lutionize the ancient practice was not very successful, is
easily inferable from the fact that important amendments
to the law were soon made. These are incorporated in the
Deuteronomy statute, and the nature of the changes leads
to the suspicion that the taking of kofer for murder was
still practised. The family gdel^ who, by immemorial
custom, was entrusted with the death-warrant, did not take
the murderer from the altar, and it is to be feared that the
zikiie ha-ir and the niakom priest connived at this breach
of the federal law. The habit of collecting money damages
was deemed too valuable a privilege to abandon for the
sake of abstract justice or large state policy.
The new remedies introduced by the Deuteronomy
statute were:
1st. The positive assumption by the state of exclusive
jurisdiction over all homicide cases, or, in the words of the
text, the acknowledgement of national blood-guilt {dam)
for homicide.
and. The abolishment of the ancient right of the family
go'el to receive the warrant of execution from the zikne
ha-'^ir^ and the compulsory duty of the latter to entrust
it to a newly created federal officer for each canton — the
go' el ha-darn — who is not the family go el.
3rd. The abolishment of sanctuary for homicide and the
exclusion of the makom priests from any concern therein.
4th. The establishment of three judicial districts, and
the setting apart of one city in each to which every
perpetrator of a homicide must go.
5th. The total abolishment of kofer for manslaughter^
and the_substitution therefor of internment in the separated ^
city, as punishment for the crime.
J
56 THE ANCIENT HEBREW LAW OF HOMICIDE
6th. A marked change in the law of evidence, by which
the testimony of one witness only became incompetent to
convict.
As regards the first and second of these points, it is to
be remarked that the name go' el ha-dam was the mere
adaptation of a word in common use : go el. The go' el was
that member of the family who, when it lost its head,
was the next friend ; a kind of sublimated executor and
guardian, who looked after the interests of his kinsmen
in trouble. And now it was the state whose new measures
and principles avowed that it had incurred blood-guilt
{dam, damim) ; that an evil fate threatened the country,
unless this blood-guilt was redeemed or removed.
A gdel or redeemer was needed, and thus the gdel
ha-dam, a being never heard of before, was created. He
was the state's redeemer from blood-guilt, not the avenger
of the victim's blood. Had he been the latter, he would
have been nokem ha-dam.
The confusion that exists has arisen out of the double
meaning of dam^ blood and blood-guilt, accompanied by
an exaggerated notion of ancient views concerning the
sanctity of blood. The Hebrews forbade the drinking of
blood, because nations with whom they came in contact
practised this habit, in association with other habits and
rites which the Hebrews deemed demoralizing. Dam
means blood. It also means blood-guilt, and even in this
sense it means two kinds of blood-guilt — the primary blood-
guilt of the perpetrator, and the secondary blood-guilt of
the community which the latter incurs by its failure to
prevent the killing, an error which it must expiate, either
by punishing the slayer, or, if he remains undiscoverable,
then by formal legal ceremony. It is with this secondary
THE ANCIENT HEBREW LAW OF HOMICIDE 57
blood-guilt, the communal blood-guilt, that our investiga-
tions are more immediately concerned. Its name is
sometimes dam, sometimes damim.
We have, in our first lecture, referred to the striking
passage of Genesis (9. 5), which refers the origin of this
keen sense of communal responsibility to the direct in-
struction of Noah by EloJiim^ at the very beginning of the
new world after the Deluge^
The same view is expressed, or implied, in other
passages :
Ye shall not pollute the land wherein ye are ; for blood -
guilt (ha-dam) defileth the land, and the land cannot be
cleansed {yektippar) from the guilt of blood {la-dam) shed
therein, save by the blood of him that shed it. Defile not
therefore the land which ye shall inhabit, wherein I dwell
(Num. o.S- ?,?,, 34).
That dam naki be not shed in thy land, which JHVH,
thy Elohim, giveth thee for an inheritance, and so blood-
guilt (damim) be upon thee (Deut. 19. 10).
Jeremiah expresses the same idea :
If ye kill me, ye bring the guilt for innocent blood {dam-
naki) on yourselves, on this city, and on its inhabitants
(Jer. 26. 15).
And Joel does the same:
I will cleanse their blood-guilt {ive-nikketi damam) that
I have not cleansed; for JHVH dwelleth in Zion (Joel
4 (3)- 21).
We have, moreover, the impressive ceremony of com-
munal purgation from this kind of blood-guilt in Deut.
21. 1-9.
By the force and operation of the new federal policy
the realization of communal responsibility for murder
53 THE ANCIENT HEBREW LAW OF HOMICIDE
became much keener in the Hebrew state than it is in our
modern conditions. They also felt a more urgent responsi-
bility for their own share in any transaction which might
result in loss of life, as is seen in this provision :
When thou buildest a new house, then thou shalt make
a battlement for thy roof, that thou bring not blood-guilt
(damini) upon thine house if any man fall from thence
(^Deut. 22. 8).
This extreme sensitiveness concerning blood-guilt was
not due to the fear of savage reprisal, as has been com-
monly thought. The instance just given is clearly an
ancient urban regulation, expressing developed feelings and
not primitive passions.
So insistent did this notion of blood-guilt become that
it cropped out everywhere. If the law proclaimed capital
punishment for an offence, it conceived blood-guilt as some-
how inseparable even from a legal execution, and got rid of
it by ascribing the blood-guilt to the convicted defendant
himself, whose bad conduct compelled the state to slay
him. The terms are: dainaw bo, the blood-guilt for him is
upon himself (Lev. 20. 9) ; demehem bam, the blood-guilt
for them is upon themselves (Lev. 20. 11, 12, 13, 16, 27;
I Kings 2. 2)?!)'
A community so impressed with the awfulness of blood-
guilt will do all in its power to avoid it. There is need for
untiring vigilance to ward it off. The functionary whose
office it is to see to the community's expiation, may well be
called the community's next friend. And for this position
there is no Hebrew word more apt than go el ha-dam, the
next friend of the community in warding off its blood-guilt.
According to this view the word go el expresses a direct
relation with the community, and the word ha-davi a con-
THE ANCIENT HEBREW LAW OF HOMICIDE 59
dition of the community which is to be protected by that
relation. The common notion is that the direct relation of
t\iQ go'el ha-dam is with the criminal. Go el is held to be
the avenger who smites the criminal, and ha-dam is not the
blood-guilt of the community, but the blood of the victim.
ThQ go'el ka-dain would thus be the avenger of the victim's
blood. The contrast is sharp. On the one hand the com-
munity's friend and saviour ; on the other, the criminal's
vengeful enemy.
In support of the former view, it may be said that no
instance can be found where go el does not mean one who
has a friendly function to perform, a function which has
a sustaining effect on the person for whom he acts, whose
go'el he is.
When one exhibits his friendliness by injuring his client's
adversary, he is no longer go''el^ but nokem, avenger.
Isa. 63. 4 brings this out clearly. JHVH is repre-
sented as going forth to take vengeance on Edom for
wrongs it has perpetrated against His people Israel, and
as declaring :
The day of vengeance {yoin nakain) (against Edom) is
in my heart.
The year of my redeemed (sJienat ge'ulai) (Israel) is
come. And in ver. 8 this relation between JHVH and
Israel is expressed by the parallel term moshia (saviour),
while in ver. 9 both terms are used together — hoshV am and
ge'alam.
That go'el is uniformly used as here contended, let
numerous instances attest :
Jacob invokes for Joseph's sons the blessing of his
protecting angel {Jia-matak ha-gdel) (Gen. 48. 16).
JHVH promises to redeem Isrsicl (we-ga'alli) (Exod.
6o THE ANCIENT HEBREW LAW OF HOMICIDE
6. 6), and in the song of Moses is worshipped for having
done it (gaalta) (Exod. 15. 13).
In Lev. 25, the redemption of the former owner of
land, sold by him, is spoken of, and it has the technical
name of gehillah (25. 24), and his act in so redeeming is
called yigal (25. 33).
If he be too poor to redeem, his next of kin shall do
so for him {gdal)^ and this friendly redeemer is the go alo
ha-karob elazv (25. 25).
Among the list of those who shall act as god are the
uncle, the uncle's son, or indeed any near kinsman {sheer
besaro) (25. 49).
When Zimri exterminated the whole house of king
Baasha of Israel, he left none of his gdalim or re'^im alive
(i Kings 16. 11).
Jeremiah uses the word in the same sense of redemp-
tion— ge'ttllak (Jer. 32. 7, 8).
He (Boaz) is one of our near relatives, of our gdalim
(Ruth 2. 20 ; 3. 9, 12, 13 ; 4. i-io ; 4. 14).
Thus it is seen that the word gdel presents only the idea
of service rendered to the friend by an act making directly,
and not indirectly, for his benefit. It is true that such
a gdel might render a kind of doubtful indirect service
to his friend by hurting the latter's enemy. When such
is the case, the word gdal does not present itself to the
Hebrew mind as describing the act. As we have seen from
Isa. ^^, 4, it is nakain which describes the vengeful aspect
of an act, because, however friendly it may be to the
beneficiary, it is hurtful to the victim. Indeed, it is the
only true Hebrew word for vengeance, though there may
have been a dialectal variation of it (iiaham) which Isaiah
uses in alliterative parallelism.
THE ANCIENT HEBREW LAW OF HOMICIDE 6i
JHVH, the abir of Israel, says :
Oh, I will ease me {ennahein) of mine adversaries, and
avenge me [innakemah) of mine enemies (Isa. i. 24).
And he uses the word nakarn in the same sense frequently
(34. H; 35-4; 47.3; 59. 17; 61.2).
Whoever slayeth Cain, ven^^eance shall be taken on him
iyukkaiii) (he shall be punished) sevenfold (Gen. 4. 15 ; 4. 24).
Thou shalt not avenge {tikkom) nor bear grudge {tittor)
(Lev. 19. i«).
Avenge {iiekom iiikmat) the Bne-Israel of the Midianites
(Num. 31. 2, 3).
Mine is punishment {iiakam) and recompense {shillem)
(Deut. 32. 3.5).
If I whet my glittering sword and mine hand take hold
on judgement, I will punish (iiakam) mine enemies, and
will recompense {ashallem) them that hate me (Deut. 32, 41).
And the sun stood still
And the moon stayed
Until the people had avenged them (ad yikkom goy) of
their enemies (Joshua 10. 13).
Samson shouted at the Philistines : Nikkamti bakem (I
will be avenged on you) (Judges 15. 7 ; 16. 28).
It is God who vouchsafed me vengeance {iiekamot)^
And subjected peoples to me (2 Sam. 22. 48).
Jeremiah uses the word frequently (11. 20 ; 20. 10, 12 ;
46. 10 ; 50. 28 ; 51. 6, 36), as does Ezekiel (24. 8 ; 25. I2,
14, 15, 17). Nahum does the like (i. 2), as does Proverbs
(6. 34).
Perhaps the most impressive use of the word nakam
in this connexion is found in passages in which it is
employed to denote vengeance against murderers.
He will avenge {yikkom) the blood {dam) of his servants
62 THE ANCIENT HEBREW LAW OF HOMICIDE
And inflict vengeance {fiakam) on his adversaries (Deut.
3^- 43).
I will avenge the blood {zve-itikkamti damim) of my
servants, the prophets, and the blood {damim) of all the
servants of JHVH at the hand of Jezebel (2 Kings 9. 7).
In law, too, the word iiakam is used technically to
denote punishment of a severe kind (Exod. 21. 20, 21).
The examples given fairly justify the conclusion that
the go el ha-dam was the public executioner, who, by ful-
filling the death-sentence against murderers, relieved the
community of its secondary blood-guilt.
That the term should in time become disagreeable, and
even odious, is inevitable. In our own language there is
a sense of shudder in the word executioner, which was even
more lively in its predecessor ' headsman '.
We have now reached a point at which we may pause.
The old Hebrew law of Exodus has been analysed, the
opposition to its enforcement explained. The stern justice
of the state, under the guidance of the great king, has
entered into a death-struggle with the crude ^^/^r-justice
of bygone ages. Makoin priests and zikne ha-ir are, some
openly, some covertly, satisfied with the old and alarmed
at the new. The vigorous blow at sanctuary, constricting
its jurisdiction and limiting its power, is received with ill-
concealed hostility. The substitution for the substantial
advantage of kofer of an idea, an ideal — ^justice — a thing
barren of personal profit, seems like the destruction of a
valuable kind of property, the extinction of a vested right.
In our next lecture we shall proceed with the further
examination of the Deuteronomy texts, whose general effect
we have stated.
Ill
The Deuteronomy texts on the subject of homicide are
three in number, and are contained in chapters 4, 19, and
11, Two of them, those in chapters 4 and 27, we may at
once set aside as having no important bearing on our
investigation.
The first (4. 41-3) is a mere historical note, stating that
Moses severed three cities east of Jordan, whither the
roseaJt bi-bli-ddat might flee {la-mis)^ he not entertaining
hatred against him {lo sone-lo) before.
There is here no attempt to define murder. There is,
however, an interesting novelty. Manslaughter is character-
ized by a term which is not used in Exodus. There the
expression is that God had dehvered the unfortunate victim
into the slayer's hand {Jia-elohim innah leyado). Here it is
bi-bli-ddat, that he had acted without intent, that he had
acted on the spur of the moment. In the latter sense of
stunning suddenness, the expression occurs in Job 36. 12.
Isaiah (5. 13), too, uses the related expression, mibbeli-ddat,
in the same sense. In short, the idea that death resulting
from a sudden quarrel in hot blood is not murder, which
prevails in the Exodus text, is not departed from by the
use of the new expression.
The third Deuteronomy text on the subject of murder
is one line of the old Artir-codo: (27. 15-25) : Ariir, he who
slays his neighbour by stealth {makkeh reeJm ba-seter)
(27. 24).
Here the term ba-seter conveys the idea of being under
cover (lying in wait), just as do the words sadah and
63
>
64 THE ANCIENT HEBREW LAW OF HOMICIDE
be-onnah in the Exodus text. (Examples of its use in an
analogous sense are i Sam. 19. 2; 25. 20 ; 2 Sam. 12. 12.)
The important Deuteronomy text is the second, the
long one in the nineteenth chapter. It opens with the
command to divide the country west of Jordan into three
districts, to set apart one city in each of said districts, and
to construct a road to it in order that every slayer {roseah)
may flee thither {yaniis). It then describes the slayer who
is not subject to the death-penalty, using the expressions
employed in the first Deuteronomy text, bi-bli-ddat and
lo sone mittemol shil shorn (without intent or previous hatred).
One single case is there presented, apparently as an illustra-
tion of what is meant by bi-bli-dci at. A man goes into the
forest with his neighbour to hew wood, and in felling a
tree the head of the axe slips from the helve, hits his
neighbour and kills him.
That this is bi-bli-ddat is obvious, but it is so far short
of illustrating the whole meaning of that term, that one
is inclined to believe that the case put really belongs to
a series similar to those presented in Numbers, and that
it was either misplaced, or alternatively, that it was deemed
unnecessary to repeat the cases already given in Numbers,
and they were therefore omitted as superfluous repetition.
Some such conclusion is inevitable, when we consider
the definition of murder, which immediately follows. It is
there described as the act of killing a sone (a hated person),
by lying in wait for him {we-arab lo).
The word arab in this connexion is new, not being
used in the Exodus text. There the idea of lying in wait
is expressed by the words sadah and be-ormah. It is,
however, a word in general use, and conveys exactly the
same idea as the expressions employed in the Exodus text.
THE ANCIENT HEBREW LAW OF HOMICIDE 65
This definition of murder excludes from that category-
all the cases of manslaughter derivable from the Exodus
text, and from the term bi-bli-ddat of this text. It may
therefore be regarded as certain that the single illustration
of manslaughter (that in the fifth verse) is not intended to
be exhaustive. Several other forms of manslaughter, such
as those we have already inferred from the Exodus text,
and such others as are given at length in the Numbers
text, are within the meaning and under the protection of
this statute.
Passing by the definition of the offence, we come to the
main purpose of the statute.
The experiment of limiting and restraining the power
of the sanctuary had not proved successful. Sanctuary was
therefore definitely abolished. The makom and the mizheah
were no longer of any avail. The makom priest's function,
so far as homicide was concerned, was at an end.
The land west of Jordan was divided into three districts,
in each of which a particular city was to be designated,
and to each of these cities there were to be highways. The
roseah might flee {y antes) to the designated city of his
district — that was the purpose of the institution.
For the first time we hear of the go'el ha-dam, the
federal ofificer detailed to every canton as sheriff or exe-
cutioner, to see that the punishment imposed by federal
law should be visited upon the culprit, and to guard against
the latter's escape by means of kofe}' or otherwise.
If the rosejaJLh.2.^ killed any one, hi-bli-ddat^ is guilty of
manslaughter, he must bear the punishment. No kofer
will be allowed. He must go to the designated city (a
state-prison city), there to expiate by internment his offence
of 'manslaughter. If he do not; no agreement for kofer
S. F
66 THE ANCIENT HEBREW LAW OF HOMICIDE
with the dead man's family, or with their go el, with or
without the connivance of the zikne ha-^ir, will protect him.
He must die ; the go el ha-dam must put him to death.
A reasonable fixed time, the length of which does not
appear from the records, was, however, allowed, to enable
him to reach the designated city. If he dawdled by the
way and exceeded the time, he was amenable to the power
of t\\Qgd'elka-dam, and paid for his carelessness with his life.
This rigid law was the reason for the strict injunction
that the road should be in proper order, lest the culprit
be delayed by reason of its imperfection, and thus perish by
the public's neglect to keep the highway in proper repair,
without any delinquency on his part.
There is in this text a clear indication of the procedure.
The man who had killed another was tried by the zihte
ha-ir. The latter ought to have administered the Hebrew
law, that is, they should have carefully examined, in order
to determine whether the offence was murder or man-
slaughter. They were, however, as a rule, disinclined to
enforce the Hebrew^ law, because a conviction of murder,
punishable by death, would take away the family's oppor-
tunity for money damages. Their inclination would be to
find the offence manslaughter, especially because the
Canaanite law knew nothing of degrees of guilt in homicide.
Whichever the finding, murder or manslaughter, the convict
would have to go to the separated city, if he would escape
death, since in either case the go el ha-dam had a warrant
for his execution after the lapse of the given number of
days allowed the culprit to reach the designated city.
This warrant ran everywhere, except within the designated
city.
If the conviction was of murder, the culprit's object
THE ANCIENT HEBREW LAW OF HOMICIDE 67
was to take an appeal ; if of manslaughter, to undergo the
penalty of internment. The Deuteronomy text gives us no
clue as to the nature or whereabouts of this appellate
tribunal. One might conjecture that the three districts
were somehow connected with Solomon's division of the
country, as related in i Kings 4, and that each of the
designated cities had a royal governor to whom certain
powers in this connexion were confided. However that
may be^ there must have been some superior federal
authority in the designated city. The zihie ha-ir who
had condemned the man for murder, applied to this
authority to surrender the appellant. There were, naturally,
cases in which the slayer, without waiting for the discovery
of his crime, or for his trial, would promptly make the
best of his way to the separated city, where he could tell
the story of the happening, in his own way, to the zikne
ha-ir^ who, not being of the immediate vicinage, would
have no further information on the subject, and would
provisionally receive him into the city, where he was safe
from the warrant of the go el ha-dam. In such cases the
zikne ha-ir of his own city would try him in his absence,
and, in many cases, the result would be conviction.
Whether convicted in his absence or in his presence, the
zikne ha-ir of his own city, who had condemned him,
would have the right to ask for his extradition.
That the case was promptly heard and disposed of,
there can be no doubt. If the appellate authority (what-
ever it was) affirmed the judgement of the zikne Hro^ they
surrendered the culprit to the latter, and thereupon they,
the zikne Hro, delivered the prisoner to th.Q go' el ha-dam for
execution. It must follow, as a matter of course, that if the
appellate authority was of opinion that the defendant was
68 THE ANCIENT HEBREW LAW OF HOMICIDE
not_guilty of murder, but of manslaughter only, they
retained him in the designated city, for the expiation of
the minor crime. No mention is made of the term of
detention, and it may have been for life. The circumstances
showThat all opportunity for kofer was intended to be
taken away. The gdel ha-dam did not represent the
family, there was no makom priest to act as mediator, and
even if a settlement had somehow been effected, it would
not have helped the culprit. As soon as he left the
separated city, the inflexible go el ha-dam was compelled
by his warrant to put him to death (Deut. 19. 12).
An interesting feature of this nineteenth chapter is the
announcement of what was evidently a novel principle in
the law of evidence. It must always be remembered that
in the Oracle trials witnesses as such had no function. The
denunciant or denunciants, under solemn adjuration, made
their statements, and on them the Oracle decided, there
being no issue joined between parties.
Doubtless, on the discontinuance of the federal oracle
tribunal, the denunciant took on the character of witness
(;ed). The whole literature shows that denunciants were
objects of hatred and fear to the general community, and
a sentiment against convicting a man on their unsupported
testimony naturally grew. Hence the law of 19. 15 : One
witness shall not be allowed to testify against a man for
any ^awon or hattat (i.e. any crime or misdemeanour) ; at
the mouth of two witnesses or of three witnesses shall the
matter be established.
The statute also contained a special clause permitting
the impeachment of witnesses in cases of sarah (a capital
offence), and prescribing death as the punishment for perjury
in such cases.
V
THE ANCIENT HEBREW LAW OF HOMICIDE 69
There is one expression in the text which requires an
explanation. Dwelling upon the necessity of building a
proper highway to the designated city, in order that the
defendant may, in the hmited time allotted, reach that
city, these words are used (I cite from the Authorized
Version) : Lest the avenger of the blood pursue the slayer,
while his heart is hot (ki yekam lebabo), and overtake him,
because the way is long, and slay him (19. 6).
From these words a picture has been drawn in many
minds, something like this : A man accidentally kills another.
Immediately he starts to run for the designated city, hotly
pursued by the go'el ha-dain, and then there is a race
between the two for the gate of the designated city, which
is the goal. This view naturally assumes that a valid
vendetta law exists alongside of a thoroughly established
state law and nullifies it, and that such nullificatioti is itself
part of the state law. That this is an impossible position,
I have endeavoured to demonstrate. Besides the intrinsic
absurdity of the view, a word must be said of the peculiarity
of the transaction.
The Version renders ki by while. Because would be at
least as good a translation. It takes the expression his
heart is hot for wild, undiscriminating rage, in which the
worthy man is unable to distinguish between a cowardly
assassination and an obvious accident. The phrase is a rare
one. It does, however, occur in another place (Ps. 39. 4 (3)).
The singer utters a penitential psalm. He has been afflicted,
and knows that his own backslidings are to blame. He
humbly prays to know his end, his hope is in the Lord that
he may be delivered from all his transgressions and recover
his former health. The state of mind when he thought
these things, and before he spoke, he describes as ham libbi
70 THE ANCIENT HEBREW LAW OF HOMICIDE
(my heart was burning (or hot) within me), meaning that he
hesitated to utter his prayer though he earnestly desired
to do so.
At most, therefore, the expression in our text would
mean : For the go el ha-dam is earnest (zealous), and might
overtake and slay him if he be delayed by bad roads.
There is an antithetical expression which confirms this
view. When Jacob's sons told their father the marvellous
tale of Joseph's high state in Egypt he could not at once
believe it {wayaphog libbd), Konig's Wdrterbuch (Leipzig,
1 910) renders this with erkalten^ so that Jacob's heart would
have become cold on hearing the narrative. The misunder-
standing is produced by the use of the word heai't. In
English we do not use it in that connexion. We receive
news coldly or with warmth, without mentioning our hearts.
The Hebrews, when they mentioned them, meant no more
than we do.
All that is meant by the sentence is that the go'el
ha-dam would surely execute his warrant if the defendant
tarried beyond his allotted time.
If this explanation be rejected, the fact still remains
that the code as now before us was fixed at a time when
the whole institution had become a thing of the past, and
was therefore subject to the interpretation, or misinterpreta-
tion, of a later age.
Respecting the change in the law of evidence for-
bidding the taking of the testimony of one witness, it may
be remarked that the records establish it as having been
made very early in the new movement. When Naboth was
charged with blasphemy against God and treasonable
utterances against the king, it was assumed as a matter of
course that two witnesses were required (i Kings 31. 10, 13).
THE ANCIENT HEBREW LAW OF HOMICIDE 71
This was in the reign of Ahab (876-854 B.C.), who was
a contemporary of Jehoshaphat of Judah (873-849 B.C.),
and the narrative runs as if the law were then so old that
the memory of its origin had passed away. We cannot be
far wrong if we refer it to Solomon's day (970-933 B.C.).
The Numbers text is the next. In some respects it is,
perhaps, the most interesting of all.
The designated three cities with their federal legate,
and their indefinite function of interference with the zikne
ha-ir^ have not accomplished the purpose. The go' el ha-
dam has not proved his ability to prevent the practice of
kofer. They have evidently learned how to circumvent
him. The whole institution is now to be thoroughly
remodelled.
It begins with a measure not only new but subversive
of a well-established policy. The guild of Levites had early
been selected as itinerant agents to bring home to each of
the cantons of the country the principles and policies of the
national government. Upon this point the authorities are
overwhelming.
J HVH spake to Aaron : Thou shalt have no inheritance
in their land, neither shalt thou have any part among them.
I am thy part {helek) and thy inheritance (jiahalah) among
the Bfte-Israel (Num. 18. 20).
As to the Levites : ... it is a perpetual statute {Jiukkat
^olam) throughout your generation, that among the Bne-
Isracl they have no inheritance {itahalah) (Num. 18. 23, 24).
The Levites were not numbered among the Bne-Israel,
because there was no nahalah given them among the Bne-
Israel (Num. 26. 62).
Levi hath no helek or nahalah with his brethren. J HVH
is his nahalah (Deut. 10. 9).
72 THE ANCIENT HEBREW LAW OF HOMICIDE
The Levite within your country {be-shaarekeiii) hath no
helek or nahalah with you (Deut. 12. 12 ; 14. 27, 29).
The Kohanim,the Levites, the whole tribe of Levi, shall
have no helek or nahalah with Israel (Deut. 18. i).
JHVH is their nahalah (Deut. 18. 2).
Only unto the tribe of Levi he gave no nahalah
(Josh. 13. 14).
JHVH, the Elohim of Israel, was their nahalah
(Josh. 13. '^'^y
Unto the Levites he (Moses) gave no nahalah among
them (Josh. 14. 3).
The fixed policy attested by these many records may
already have been somewhat trenched upon. It was at the
beginning of Solomon's reign that he sent the Kohen
Abiathar in disgrace from the court to his estate (W sadeka)
at Anathot (i Kings 2. 26), which then was, and till the
exile continued to be, a Levitical city. At all events, the
decree went forth that the Bne-Israel should give to the
Levites a portion of their own nahalah in the 'arim^
together with appurtenant fields {migrash) ; that is, cantonal
jurisdiction over the territory so given should be abandoned.
This, though violating the spirit of the older law, was in
accordance with its letter, which merely forbade Levites to
have a nahalah within the "^arim {be-shaarekem). The
nahalah now acquired by the Levites was no longer u ithin
the ^arim, but outside of them. The Levites were citizens
of the federal state only, the jurisdiction over the newly-
acquired territory was in them, and the transaction was, in
effect, a cession of jurisdiction over the Levitical territory to
the federal government.
It was further enacted that out of the forty-eight federal
cities thus created (among which, by the by, Anathoth is
THE ANCIENT HEBREW LAW OF HOMICIDE 73
reckoned (Josh. 21. j8)), there should be six \ire ha-miklat
whither a roseah might flee {la-ntts).
And thereupon, the general policy being thus explicitly
declared, the specific purpose of the W^ niiklat is enlarged
upon. The roseah is now defined {'>)^. 12) as makkeh nefesh
bi-shgagah, one who kills a person without intending to do
so. The city to which he goes is miklat from the gdel^ in
order that the roseah may not die before he has been
adjudged guilty of murder by the federal court, the '^Edah
{'^^, 11). Three of these ^are miklat shall be east of Jordan,
and three west of it. The right to a federal trial for murder
belongs not only to the Bne-Israel, but also to the ger and
the toshab. The ^Edah is the final court of appeal to
determine whether the judgement of the local ziknc Jia-Hr
condemning the defendant to death for murder, shall stand
{^. 24). The issue presented to the ^Edah is defined as
being between the condemned man on the one side and the
go^el ha-dani on the other.
If the ^Edah refuses to afifirm the conviction of murder,
and declares the offence manslaughter, the go el ha-dam's
death-warrant is suspended, but not annulled. The prisoner
is remanded to the */r miklat^ there to remain. The term
of his confinement in that city is now fixed. He is to be
discharged at the death of the Kohen ha-gadol (the Koheii
anointed with the holy oil). If he at any time before
commits prison-breach, that is, goes outside of the city wall,
the go el ha-danis death-warrant becomes operative, and it
is the latter's duty to execute the prisoner. This execution
is lawful and justifiable. No blood-guilt arises from it
{en lo dam) (35. 27).
At the expiration of the prisoner's term of service the
death-warrant loses all force and validity. The manslayer
74 THE ANCIENT HEBREW LAW OF HOMICIDE
returns to his home and estate, free from any further conse-
quences. His crime has been fully expiated {^^. 28).
Thereupon there is an emphatic prohibition of ko/er in
murder cases; the murderer must be put to death (35. 31).
And this is followed by an equally emphatic prohibition of
ko/er in cases of manslaughter ; the defendant's term in the
'ir miklat may not be evaded or abridged by compounding
The general policy is then vindicated by a declaration
of the principle that murder pollutes the land, and that the
land cannot atone for this pollution save by the blood of
the murderer {2^^. 33). And this principle is enforced by
the thought that JHVH dwells in the land, that JHVH
dwells among the Bne-Israel (35. 34).
To this Numbers text that of Joshua 20 is a mere
pendant. It begins by directing the appointment of six
"^are ha-miklat, whither the roseah {makkeh nefesh bi-shgagah^
bi-bli-daat) may flee, and they shall be for miklat from the
go el ha-dam (20. 3). When the defendant arrives at the
gate of the miklat city he stands before the zikne ha-Hr of
that city and states his case. It is safe to affirm that he
always declares that it was no murder, that ha-elohim innah
le-yado^ that it was bi-bli-daat^ that it was bi-shgagah.
The hearing is unilateral, being, in effect, a motion to
grant an appeal from the judgement of the zekeuiin of his
'/>. The probability is, that under such circumstances a
prima facie case for granting the appeal was generally made
out, whereupon he was admitted for detention into the
federal city.
If the zekenim of his city, or the gdel ha-dam, believed
that there was no proper case for appeal, the latter went
to the Hr miklat and applied to the ziknc ha-'ir for the
THE ANCIENT HEBREW LAW OF HOMICIDE 75
surrender of the prisoner to his custody. This he was
compelled to do, because his warrant, though it ran every-
where else in the country, was ineffective in the federal
territory. Had he executed it there, he would have been
himself guilty of murder. It was for this reason that he
asked for the prisoner's surrender. This was, in effect,
a motion to quash the appeal. Originally the zikne ha-ir^
perhaps in conjunction with a federal legate, heard the case
on this motion and determined it. If they decided to quash,
the prisoner was surrendered to the go el ha-dam (Deut.
J 9. T2). Under the law, as it was recast, the authorities
of the miklat city were shorn of this power, and the case had
to go to the ^Edah for trial and judgement (20. 6).
And this exclusive jurisdiction of the ^Edah is emphati-
cally reiterated. ' These are the ^are ha-miiadah for all
the Bne-Israel and for the ger whither any makkeh-nefesh
bi-shgagah might flee {la-nus)^ and not die by the hand of
the go'el ha-dam until he shall have been adjudged guilty
of murder by the *Edah ' (20. 9).
There is one other feature of the Numbers text which
must not be overlooked. It is a specific law of evidence
for homicide cases only, and reads thus :
H omicide {kol-makkeh-nefesh).
By the mouth of witnesses he (the go'el ha-dam) shall
put the roseah to death. One witness may not testify to
procure a person's death (^^, 30).
There are new features of this Numbers text which are
worthy of remark.
For the first time we hear of ^are miklat. It will be
remembered that in Exodus there was sanctuary in the
makomy and in Deuteronomy there were separated cities.
These were all in cantonal territory. Now we have federal
76 THE ANCIENT HEBREW LAW OF HOMICIDE
cities with a distinctive name. All the versions render the
word miklat with refuge or asylum. The translators, how-
ever, all laboured under the prepossession that the ancient
institution, the sanctuary, was still in existence, and that it
permeated the law always. The fact is, however, that the
establishment of the separated city of Deuteronomy extir-
pated the ancient sanctuary, and created an institution
belonging purely to the region of civil law. It did more.
It gave a distinct punitive character to the internment of the
manslayer in the separated city, though the text lacks
definiteness as to the duration of the punishment.
When the system was thoroughly reconstructed, as the
Numbers and Joshua texts show it was, the idea of the
Vr miklat was no longer doubtful or confused. It was
a place for the detention of a convicted murderer, pending
an appeal to the federal court, the ^Edah, and for the
internment of a convicted manslayer during the term of
life of the Kohen hagadol then in office.
Refuge or asylum gives no adequate notion of these
functions of the Hr miklat.
The word miklat is obscure. It occurs nowhere else
than in the legal and historical passages we have cited, and
in their doublets in Chronicles. The root kalat, from
which it is derived, is represented in but one other passage
in the Bible. Leviticus 21. 23 speaks of a bullock or of
a lamb that is not perfect enough to offer for a vow {ncder)y
but may be accepted for a nedabah^ a gift (not for sacrifice).
The characteristics that constitute this defect are spoken of
as sarud or kaliit. The Authorized Version renders sartca*^
by something superfltcotis, and kahit by something lacking,
recognizing a certain opposition between the two. Kautzsch
understands the meaning of sania'' to be that the animal
THE ANCIENT HEBREW LAW OF HOMICIDE 77
has a limb or limbs which are too long, and kalut that the
limb or limbs are too short. Strangely enough, the anti-
thetical word sariLo' occurs only in Leviticus, once in the
instance cited and again in 21. 18, where the Authorized
Version consistently renders something superjlitotis. Here
Kautzsch again understands it to mean having a limb or
limbs which are too long.
The root sara' (from which sarua' is derived) is repre-
sented by only one other word in the Bible. Isaiah, in the
course of a bitter reproach addressed to the Jerusalem
magnates, uses the figure (Isa. 28. 20), that the bed is too
short for a man to stretch himself on it [ki kasar ha-massa^
nie-histarea). The verb sard^ therefore means to stretch
one's self at will. If the verb kalat is its opposite, as all
seem to agree, it must mean to be ' cabin'd, cribb'd, confined *,
and this meaning would agree exactly with the ascertained
function of the Hr miklat, the prison city.
While we are on this branch of the subject, it may be as
well to say a word on the subject of fleeing. The defendant
always flees to the *^ir miklat The verb is mis^ which
undoubtedly means to flee, and that in prehistoric times,
when murderers sought altars for asylums, they fled to
them, need not be questioned. The point is that the verb
litis became technical, and long after men had ceased running
to the cover of an altar, it continued to be used for the
acts men did under later law to stay judgement against
themselves. In our own language, when a man loses his
case, he promptly says that he will go to the Supreme
Court at once, though he sits still.
We may therefore admit that the word was used of old
when men sought the protection of the inizbeah. When,
however, the separated city was established, it was inevitable
78 THE ANCIENT HEBREW LAW OF HOMICIDE
that a certain time would be allowed for the defendant to
reach it. He was not to run a race. Undoubtedly he had
to take his appeal without delay. The modern devices of
dilatory motions and endless appeals on trivial and ridicu-
lous points, which bring justice into contempt, would have
met with no tolerance. Doubtless the time set for appeal
was short. Unless taken within a limited number of days,
it was not a supersedeas^ and the public executioner {gdel
ha-dam) was in law bound to execute the death-warrant.
During the few days, however, the defendant was perfectly
safe. Naturally he could not stay at home. It was the
part of common sense to proceed at once to take his appeal.
And this necessity may easily be described by a word
meaning to act promptly, to hasten, to go at once. And this,
we believe, is all that the verb nus means in this connexion,
though it many times in other connexions means to flee,
to run away.
That it has other meanings than to run away in fear
the literature shows :
a Kings 9. 3, 10. Elisha instructed one of his corps of
nebVini to anoint Jehu king of Israel, and having done
so, to depart at once, without delay {we-7tastah we-lo
tehakkeh).
There are others in which the word means to turn to one
for help.
To whom will ye turn {tanusti) for help ? (Isa. 10. 3).
If those to whom we turned for help (iiasmi) have fared
thus, how shall we escape? (Isa. 20. 6).
There are still other instances in which it means an
impetuous forward movement, the very reverse of flight
from a pursuer :
He breaks in like a confined river
THE ANCIENT HEBREW LAW OF HOMICIDE 79
Which the spirit of JHVH drives before it {iiosesah bo)
(Isa. 59. 19).
Ye would not, but ye said :
No, on horses will we fly (iianiis) —
Therefore shall ye flee {teniistin) ;
On the fleet {kal) will we ride —
Therefore shall ye have fleet pursuers {yikkallu)
(Isa. 30. 16).
In the one instance, that of Joab, where it means seeking
the protection of the altar, there was really no pursuit and
no running away. We may be sure that Joab walked
calmly to the o/ie I JHYH (i Kings 2. 28, 29).
The most important passage in which the word is used
is in Prov. (28. ] 7). The Hebrew text is :
Adam ^ashuk be-dam nafeshy ^ ad-bor yanus ; al-yitmeku bo.
The Authorized Version is :
A man that doth violence to the blood of any person
shall flee to the pit ; let no man stay him.
The translation is not happy, since it conveys no clear
meaning. Others understand it to mean that a person
guilty of murder must be a fugitive till death, and that no
man should aid in softening his hideous fate.
It would seem, however, that these renderings rest on
the supposition that the bor is the grave, man's last resting-
place. We shall hereafter take occasion to show that bor is
a prison, and, moreover, that Vr miklat disappeared no later
than 850 B.C., and that thereafter the homicide went to the
bor. When we consider the Proverb in question in that
light, it becomes a sane, popular saying.
When the '^are miklat were replaced by prisons in
various places, and the accused was sent thither to await his
80 THE ANCIENT HEBREW LAW OF HOMICIDE
trial, or the result of his appeal, he would, without doubt,
have liked to avoid this confinement.
The Proverb is a warning to friends that helping him
will hurt themselves. In plain English : Don't interfere
with a murderer's going to prison. The ordinary mode of
such interference would be by surreptitiously harbouring
him. Al yiUneku bo means, therefore, Do not receive him.
Isaiah {^i?)' 15) gives us a fine instance of the use of this
verb tamak in a sense closely related. It is in his description
of the just man :
He walketh righteously and speaketh uprightly.
He despiseth the gain of oppressions.
He closeth his hands against receiving bribes {ini-
temok ba-shohad).
He stoppeth his ears against blood- informers.
He shutteth his eyes against the sight of evil.
There is another new term in this text. The defendant,
who is to be interned in the '^ir miklat, is now the man who
has VxW^Mi-shgagahddL term not before used in the criminal
law, either in the Exodus or the Deuteronomy text. In
the former it was ha-elohim ijtnah le-yado^ in the latter bi-bli-
da*at. For both these ideas there is now substituted the
general statement that the defendant acted in error, that
there was no intent to kill, or, as the versions render it, he
acted unwittingly.
One may note in this a certain change in the mental
atmosphere of the law courts. When the zikjte ha-Hr of
the various cantons were to administer the law, the act of
manslaughter was described as the act of God, having
been perpetrated without intent by man. For the federal
(Levitical) courts, however, there was offence in this. The
unfortunate slayer, however guiltless of murder, was never-
THE ANCIENT HEBREW LAW OF HOMICIDE 8l
theless a criminal of a certain grade, and the ascription of
the act to God was repellent. It could be defended only
on the subtle theory that Heaven punished in some
mysterious way men who think or secretly do wicked
things which human law and justice are too feeble and
short-sighted to reach. According to this theory, both the
manslayer and his victim "have offended Divine justice, the
former in a lesser, the latter in a greater degree. The crude
fact that one man had killed another, without warrant of
law, brushed aside this subtle theologizing, and the act was
now described as a crime, however unintentional, committed
by the slayer.
The word itself does not import freedom from blame.
Its root- word, shagag, has an equivalent, shagah^ and
though this means to err, to go wrong, it frequently re-
proaches the wanderer that it is his own wickedness which
led him astray.
When Saul confesses that he ought not to have sought
David's life, he says, wa-eshgeh (I have erred), admitting
that he had done the wrongful acts, but had not realized
how wicked they were (i Sam. %6. ii).
Isaiah, reproaching Ephraim, says that the Kohen and
the Nabi have erred (wandered from the right path, shagu)
because of their own bad habit of drunkenness, thus charging
them with wickedness as the cause of their error (Isa. 128. 7).
In Leviticus the word is often used to denote certain
classes of doings for which men should bring sin-offerings.
They are all arrayed under the head of bi-shgagah (inadver-
tence), and may be committed by the high priest (Lev. 4. 3),
by the ^Edah (4. 13), by the Nasi (4. 32), and by any
member of the ''Am ha- ares (4. 27) ; by any person
whatsoever (5. 15).
S. G
84 THE ANCIENT HEBREW LAW OF HOMICIDE
condition : Swear that ye will not yourselves kill me {pen
tifgeun bi attem) (Judges 15. 12).
When Micah reproached the Danites for their audacious
robbery, they bade him be silent or he and his would die
on the spot {pen yifge'^ti bakem anashim mare nefesh zve-
asaftah nafsheka we -nefesh beteka) (Judges 18. 25).
When Saul ordered his soldiers to kill the priests at Nob,
they would not {zve-lo abtc lifgoa' be-kohane JH VH) (i Sam.
22. 17). Doeg, however, did so on the spot {zva-yifgd hn
ba-kohanim) (i Sam. 22. 18).
When the Amalekite reported that he had killed Saul,
David called one of his men and ordered him to kill the
self-confessed assassin of JH VH's anointed : Gash, pegd bo,
whereupon the soldier slew him (2 Sam. i. 15).
And the words are used to describe the immediate death
of Adonijah at the hands of Benaiah (i Kings 2. 25).
Solomon also ordered Benaiah to execute Joab forth-
with by the words: Lek pegd bo (i Kings 2. 29, 31, 32, 34).
And the like happened to Shimei i^a-yifgd bo wayamot)
(i Kings 2. 46).
A man escapes a lion, and a bear kills him {nfgdo ha-dob)
(Amos 5. 19).
This first group of four verses (Num. '^^. 16-19) i^
followed by a sej)arate £ip_up jof J:.wxiigo^l)^_ These define
murder. The important elements are previous enmity
[sin ah, ebah) or lying in wait {sediyah), Si7iah and ebaJi
are synonymous. In Exodus neither word is used. In
Deuteronomy there is shi aJi. The words yazid and
be-onnah, however, which are used in the Exodus text,
necessarily imply it. The former indicates an insolent
purpose to kill, and the latter deliberate preparation for
carrying this purpose into effect.
THE ANCIENT HEBREW LAW OF HOMICIDE 85
Scdiyah is used in Exodus, while Deuteronomy, without
using the word, employs a synonymous term {we-arab lo).
Thus far Exodus, Deuteronomy, and Numbers are in
substantial agreement. The new feature in the Numbers
law is the detailed description of the physical acts by
which murder may be committed. These are probably not
intended to be an exhaustive list, but they certainly go far
to cover the field. An iron weapon is presumed to be
murderous ('^^. 16) ; a stone or a wooden weapon may
be. Whether or not these are murderous weapons must
be determined by inspection, and by investigation into the
previous relations of the parties. If a man kill another
with either of them, the law requires that they be such
wherewith a man may die, meaning thereby, would be
likely to die, before their use raises the presumption that
murder was intended. Wherever this presumption arises,
it may be negatived by proof of the fact that there was no
previous ebah between the parties.
Murder, however, may be committed without any
weapon. A man may kill another with his hands. In
such cases ebah or sin' ah must be clearly proved (^^. 21).
Following the definition of murder is a group of two
verses (22-3) defining manslaughter.
The first (22) is a mere negative of 20. The latter
declares it to be murder if death is caused by thrusting him
iyehdafennu) with hatred (sin'aJt) or hurling at him {hishlik)
or lying in wait {sediyah).
The former declares it to be manslaughter if death is
caused suddenly {be-fetd) by thrusting him (Jiadafo\ without
hatred {ebah), or by casting upon him {hishlik) anything
without lying in wait {sediyah).
And to this is added verse 23, which also reduces the
84 THE ANCIENT HEBREW LAW OF HOMICIDE
condition : Swear that ye will not yourselves kill me {pe7i
tifgeun bi atteni) (Judges 15. 12).
When Micah reproached the Danites for their audacious
robbery, they bade him be silent or he and his would die
on the spot {pen yifgeu bakem anashim mare 7iefesh ivc-
asaftah 7tafsheka we-nefesh beteka) (Judges 18. 25).
When Saul ordered his soldiers to kill the priests at Nob,
they would not [ive-lo abtc lifgoa' be-kohane JHVH) (i Sam.
22. 17). Doeg, however, did so on the spot {zva-ytfga hit
ba-kokanim) (i Sam. 22. 18).
When the Amalekite reported that he had killed Saul,
David called one of his men and ordered him to kill the
self-confessed assassin of JH VH's anointed : Gash, pegct bo,
whereupon the soldier slew him (2 Sam. i. 15).
And the words are used to describe the immediate death
of Adonijah at the hands of Benaiah (i Kings 2. 25).
Solomon also ordered Benaiah to execute Joab forth-
with by the words: Lek pegd bo (i Kings 2. 29, 31, 32, 34).
And the like happened to Shimei {wa-yifga bo wayamot)
(i Kings 2. 46).
A man escapes a lion, and a bear kills him {ufgao ha-dob)
(Amos 5. 19).
This first ^roup pi four verses (Num. 0^^. 16-19) is
followed by a separate group of two (^o^.2^Xk-.,These define
murder. The important elements are previous enmit}'
[sin'ahy ebah) or lying in wait (sediyah). Sin ah and ebaJi
are synonymous. In Exodus neither word is used. In
Deuteronomy there is sin aJi. The words yazid and
be-ormaJi, however, which are used in the Exodus text,
necessarily imply it. The former indicates an insolent
purpose to kill, and the latter deliberate preparation for
carrying this purpose into effect.
THE ANCIENT HEBREW LAW OF HOMICIDE 85
Sediyah is used in Exodus, while Deuteronomy, without
using the word, employs a synonymous term {we-arab lo).
Thus far Exodus, Deuteronomy, and Numbers are in
substantial agreement. The new feature in the Numbers
law is the detailed description of the physical acts by
which murder may be committed. These are probably not
intended to be an exhaustive list, but they certainly go far
to cover the field. An iron weapon is presumed to be
murderous ('^^. 16) ; a stone or a wooden weapon may
be. Whether or not these are murderous weapons must
be determined by inspection, and by investigation into the
previous relations of the parties. If a man kill another
with either of them, the law requires that they be such
wherewith a man may die, meaning thereby, would be
likely to die, before their use raises the presumption that
murder was intended. Wherever this presumption arises,
it may be negatived by proof of the fact that there was no
previous ebah between the parties.
Murder, however, may be committed without any
weapon. A man may kill another with his hands. In
such cases ebak or sin^ak must be clearly proved {'^^, 21).
Following the definition of murder is a group of two
verses (22-3) defining manslaughter.
The first (22) is a mere negative of 20. The latter
declares it to be murder if death is caused by thrusting him
{yehdafennu) with hatred (sin^aJt) or hurling at him {hishlik)
or lying in wait {sediyaJi),
The former declares it to be manslaughter if death is
caused suddenly {be-fetd) by thrusting him (Jiadafo\ without
hatred {ebah), or by casting upon him {hishlik) anything
without lying in wait {sediyah).
And to this is added verse 23, which also reduces the
86 THE ANCIENT HEBREW LAW OF HOMICIDE
offence to manslaughter, if he cast upon him {ivayappel)
a murderous stone, seeing him not, not being his enemy
(oyeb)^ nor seeking to harm him. The same principle would
doubtless apply if, instead of a murderous stone, it was
a murderous wooden instrument.
It will be noticed that the new term, be-feta\ is now
introduced. It means an event that not only was not
foreseen, but that happened suddenly, like lightning from
a clear sky. The expression seems apt to designate one of
the many quarrels which arise between high-tempered men
who may not even know each other, but who are suddenly
brought into contact, under circumstances which induce one
or the other to believe that he has been offended. The
idea thus conveyed is the same as the ha-elohim innah
leyado of Exodus, and the bi-bli-ddat of Deuteronomy.
The last group, four verses (24-37), are a pendant to
verse 12, which provides for trial by the ^Edah.
Verse 34 affirms this, by declaring that the 'Edah shall
judge between the slayer and the gdel ka-dam^ according
to the mishpatim which we have just considered. The
term gdel ha-dam is here used as representing what we
would call the commonwealth, the public in its role of the
prosecutor of crime.
Verse 25 provides that if the commonwealth's case is
not made out, the ^Edah remands the manslayer to the
Hr miklat^ there to abide until the death of the Kohen
ha-gadol.
Verses 26 and 27 provide against the manslayer's escape
from the */r miklat before the end of his term.
Incidentally, they reveal a feature of the negotiations
between the cantonal authorities and the federal govern-
ment. When the separated cities were found inadequate
THE ANCIENT HEBREW LAW OF HOMICIDE 87
for the purposes of the latter, and it had succeeded in
procuring from the cantons a cession of their jurisdiction
over certain cities in the various districts of the country, the
condition was agreed upon that a death-warrant issued by
the zikne ha-ir should continue to be valid everywhere in
the land except in places under exclusive federal jurisdiction.
This is the meaning of verses 16 and ^17. So soon as the
manslayer broke bounds, he was at any point in the country
subject to the enforcement of the original death-warrant,
which was merely suspended while he was on federal terri-
tory, but was not annulled or made void until he had served
his full term in the Hr miklat. When that had been done,
the warrant was dead.
A word is needed on the evidence law in this text. It
differs from the Deuteronomy law in several respects. The
latter, as we have seen, is general and applies to the hearing
of every crime and misdemeanour. It also affirmatively
requires two witnesses or three witnesses (19. 15).
Besides this general law, however, Deuteronomy has
another version which limits it to capital cases (17. 6).
The Numbers statute regulates murder trials only
(?iS' 30)* It varies from the Deuteronomy law in that while
it prohibits judicial action on the testimony of one witness,
it prescribes no specific number of witnesses as necessary.
It merely uses the plural, witnesses.
The probability is that the general law as stated in
Deut. 19, 15 remained unmodified, except in so far as to
permit trial and judgement on the testimony of two
witnesses without more. The alternative number ' three
witnesses', used in Deuteronomy, is difficult to explain.
The thought in it seems to be that the denunciant, or the
plaintiff, must be corroborated by two disinterested wit-
88 THE ANCIENT HEBREW LAW OF HOMICIDE
nesses. By the time of the Numbers statute he had probably
been disqualified as a witness. Hence the change.
The Joshua text (20. 2-9) is, as has been said, a mere
pendant of the Numbers text. It has the peculiarity that
the Deuteronomic term bi-bli-ddat is used in verse 3,
apparently as an explanatory note to the word bi-shgagah^
which it follows, and in verse 5 is used without bi-shgagah.
These, however, are matters of no moment.
The value of the text lies in its supplying details
necessary for the completion of the Numbers text.
The latter tells us that the roseah shall go to the *2>
miklat, and that from it he shall be taken to the seat of
the 'Edahy there to be tried. The Joshua text describes
the proceedings when he reaches the Hr miklat. His
admission is a question to be decided by the zekenim^ who,
as the city is Levitical and federal, are governed by the
federal law alone. As he states his own case, he would in
most cases declare such facts as would establish shegagah.
If he failed to do so, but on his own showing was a mere
murderer, they would not receive him, and he would be
delivered to the go el ha-dam for execution, but if he were
once admitted, the application of the go el ha-dain for his
surrender would have to be refused, and he would have to
be tried by the '^Edah. To the "^Edah, whose seat was
probably in Jerusalem, he would be taken by the federal
authorities. At that trial his 'ir would be represented by
its gdel ha-dam^ and perhaps by some of its zekenim. If
the conviction of his Hr was affirmed, he would be executed
forthwith. If, on the other hand, the ^Edah ruled that it
was manslaughter, he would be remanded to the Hr miklat
to serve his term.
We have still the Leviticus texts to examine. They
THE ANCIENT HEBREW LAW OF HOMICIDE 89
are silent as to the distinction between murder and man-
slaughter, and hence fail to indicate that the latter offence,
if it existed in the eyes of the law, was in any degree
punishable.
They have, however, one prominent feature which
stamps them unmistakably as federal law. The makkeh-
ish must be put to death (inot yiimat) (24. 17, 21).
It behoves us, therefore, to ascertain the probable reason
for the curtness of the passages.
They form part of a little Torah of twenty-four verses
(Lev. 24. 10-23). It begins by a rather full report of the
case tried by oracle, wherein the son of a Hebrew woman
by an Egyptian man was sentenced to death for blasphem-
ing the oracle (cursing the Shem), and shows that the
principle established by that case was that the Hebrew law
held persons not pure Hebrews {gerim) answerable to the
law as fully as if they were pure Hebrews (ezrah).
To this, which serves as the text, are added brief notes :
1st. That a makkeh-ish must undergo the death penalty.
2nd. That a makkeh-behemah must compensate the
injured party, nefesh tahat nefesh (beast for beast).
3rd. That a maimer shall be reciprocally maimed (breach
(sheber) for breach, eye for eye, tooth for tooth).
4th. That mishpat (law) is single — the same for ger as
for ezrah.
The origin of this interesting and curious document may
be conjectured to be somewhat as follows. The projected
law reform, we may be sure, was not the work of mere
theorists or idealists. It was a practical measure to unify
and solidify the kingdom. It demanded the extinguishment
of local customs which were hostile to the general principles
of the federal law. It had, however, other ends to attain.
go THE ANCIENT HEBREW LAW OF HOMICIDE
By this time the Hebrews were in unquestioned supremacy
in the cantons, and the g^rini^ though everywhere con-
siderable in numbers, were relatively powerless, as being
hopelessly in the minority. They would naturally protest
to the federal government that they were not fairly treated.
In the previous lecture it was intimated that the first
step in the law reform was the limitation of trial and
sanctuary to the cantonal capital, and that to assure the
execution of the law, untainted by Canaanite custom,
Kohanim or Levites were sent as assessors to the zikne
ha-ir in each of the said cities. On this point we have
the precious zikne ha-''ir document (Deut. 21. 1-9), which
happily, though not too relevantly, interjects into the pro-
ceedings of the zikne ha-ir this note : And the Kohanim
the bne-Levi shall come near; for them JHVH thy God
hath chosen to minister unto Him, and to bless in the name
of JHVH, and according to their pronouncement (^alpihem)
shall be decided every rib (controversy) and every nega
(assault) (Deut. 11. 5).
If now we imagine one of these Kohanim appointed by
the federal authorities to go to one of these cantons as
assessor, he would naturally be charged to see to it that the
gerim obtained full justice. The central authorities would
give him a sefer^ containing the great doctrine of the
equality of all before the law, and the fact that the founda-
tion case bore rather hard on the ger was an additional
argument to show that when the case was the other way,
it was just that the^^;' should receive the advantage. The
notes to this original sefer may fairly be presumed to be
the memorandum made by one of these Kohanim of three
classes of cases, in which he succeeded in having the doctrine
fairly carried out.
THE ANCIENT HEBREW LAW OF HOMICIDE 91
This suggested explanation of the form of the Leviticus
text involves the conclusion that it w^as intended, primarily,
to inculcate the doctrine and policy of the state, that the
ger was equal in law to the ezrah^ whether such equality
would operate to his advantage, or to his disadvantage.
If such were the true origin and intent of this Leviticus
Torah, it would be idle to seek in it any elaboration of
other doctrines or principles than the one it was specially
intended to illustrate. For the purposes of our present
investigation, it may therefore be dismissed without further
comment.
This review of the texts would lack completeness if we
failed to consider the only text, other than the legal ones,
which has the term go^el ha-dam. It is the fourteenth
chapter (vv. 1-24) of 2 Samuel.
The length of this lecture, however, forbids further
expansion, and the matter may well go over to the next.
IV
In all the Biblical literature there is no mention that
a gdel ever killed anybody, nor, indeed, is the term gdel
ha-dam used in any other than the legal passages cited,
and the historical notes relating thereto, save in one instance.
Absalom, having murdered his brother, Amnon, fled
from the royal court to his maternal grandfather. King
Talmai of Geshur, with whom he stayed for three years.
David's general-in-chief, Joab, was a partisan of Absalom,
and favoured him for the succession to the throne. Exile
was fatal to such pretensions, and Joab schemed for his
recall.
Joab was a masterful character, skilled in diplomacy
and great in war, who, in general, accomplished what he set
out to do. For good reason he did not himself ask David
to pardon Absalom, but contrived to put the matter to
David through the agency of a wise woman {ishah hakamah).
Exactly what an ishah hakamah was is not clear. There
are but two of them in the Bible, and both have dealings
with Joab. One is tempted to opine that there were legends
current in Israel concerning such women, and that the story
we are now considering was one of the series. The wise
woman of Abel-beth-maacah (2 Sam. 20. 18) treated with
Joab, caused him to raise the siege, and saved the city.
Her wit persuaded Joab, her wisdom controlled her towns-
92
THE ANCIENT HEBREW LAW OF HOMICIDE 93
men. And now Joab entrusted a most delicate diplomatic
negotiation to another ishah hakamah^ her of Tekoa. Abel-
beth-maacah was in the north ; Tekoa was in the south.
The story is well told. Joab knew that David longed
for Absalom, but would not recall him because he deserved
the punishment he was undergoing. The point was to
persuade the king that the time had come to pardon the
delinquent.
Joab carefully instructed his wise woman. She was to
be a mourning widow, one of whose sons had murdered the
other. Justice demanded that the murderer should be
executed, and his only son likewise. If this was done, her
beloved husband's name and family would be totally extinct.
She therefore implored him to stay the hand of justice and
in his mercy grant a pardon. Her tears and prayers pre-
vailed, and the king swore the great oath {hai-jfHVH)t\\2it
her son would be saved.
Now was the moment to remind David that he who
would pardon the criminal of another family should do the
same by his own, especially in view of the fact that the
people desired it.
The king at once taxed her with being Joab's envoy,
and she owned that she was. Her work, however, was well
done. She had persuaded the king to yield to his longing.
Joab was sent for and given leave to bring Absalom home.
It is in the course of the woman's fictitious story that
she uses the loxm go el ha-dam. The people who demanded
justice against the murderer are called kol-ha-inishpahah, the
ordinary meaning of which would be her husband's brothers
and their descendants. The language ascribed to them is
peculiar. They all speak together, and they do not address
themselves to the zikite ha-'ir or to any other authority,
94 THE ANCIENT HEBREW LAW OF HOMICIDE
but to a lone widow who is assumed to have the guardian-
ship of her son, who is himself the father of a boy. Their
expressed desire is to kill the murderer and his son
(unmitehii be-nefesh ahiiu asher harag we-nashmidah gam
et ha-yoresh) (2 Sam. 14. 7). So runs the story. The king
bids her go home, that she shall not be troubled, and then
she goes on to pray that the go'el ha-dam may no longer
destroy, that they may not destroy her son (14. 11).
The whole story is obscure, though the account may
omit circumstances which would have made it more plau-
sible. The woman may, for instance, have represented
herself as coming from a remote place in the northern
mountains, where lawlessness prevailed, and where the
whole royal power was needed to enforce law. At all
events, the touch which says that the community in which
she lives is unable to act without her help rather strains
belief. Moreover, they do not speak of any one executing
the culprit but themselves, in the plural. It is she who
bethinks herself of the gdel ha-dam^ and asks that he be
restrained, in order that they might not kill her son.
If her application is, as it appears to be, for pardon,
she says nothing that is inconsistent with the theory that
she fears legal prosecution and conviction and the conse-
quent death of her son at the hands of the go el ha-dam^
the federal executioner. On this view her conduct is
natural, since she asks the king to stay the hand of his
own officer.
Above all, it is necessary to remember that the whole
is a piece of Joab's biography, intended to exalt his diplo-
matic wisdom. Biographies are often romantic, and in the
case of popular heroes are from time to time retouched.
When this story took its present shape may not be easy to
THE ANCIENT HEBREW LAW OF HOMICIDE 95
determine. In any event, it can scarcely be looked on as
authority for law in the time of David. If we had the
biography of Joab from which this story was probably
extracted, the difficulties of interpretation might readily
disappear. It is significant, however, that ih^ go'el ha-dam
is never spoken of in the literature after Joab. He was
also the last who took refuge by the Altar in Jerusalem, and
his death in that holy place marked the downfall of the
whole idea of sanctuary.
The general conclusions which we have reached con-
cerning the go' el ha-dam and the '/r miklat, as stages in an
extensive law reform, demand that the results of this move-
ment be ascertained.
Its end was the establishment of a federal court in
every canton of the land, each of which had executive
officers to execute its judgements. 'Judges {shofetim) and
officers [shoterim) appoint in every one of thy cities {she-
'arekd), who shall judge the people with just judgement
(mishpat-sedekY (Deut. i6. i8).
It was Jehoshaphat (873-849 B.C.) who, after a hundred
years, gave to the grandiose conceptions of Solomon the
final touch which assured their triumph.
The story is told in 2 Chronicles.
He began his reign by placing garrisons in all the ^arim
of Judah, and in the ^arim of Ephraim that had been taken
by his father Asa (17. 2). In the third year he sent his
sarim (princes) into every corner of the land to instruct
in the ^are Yektidah (17. 7), and with them he sent legal
experts (Levites and kohanim) to re- enforce their statesman-
like arguments with the statement of the principles and
practices of the Hebrew law, and they taught in Judah,
carrying with them the sefer tor at JHVH, and went about
96 THE ANCIENT HEBREW LAW OF HOMICIDE
through all the "^are Yehtidah and taught the people
(17-8,9).
When the ground was thus carefully prepared and there
were sufficient forces everywhere to assure obedience, he
took the final step. He set judges (shofetini) in the land,
in all the ""ariin of Judah, city by city (19. 5).
Moreover, he established a supreme court in Jerusalem,
composed of Levites, kohanim^ and eminent chiefs to
administer mishpat JHVH, and the ordinary rib (suits)
(19. 8).
For cases concerning the king's revenues or estates, the
court had a special president (Nagid), Zebadiah ben Ishmael,
who was doubtless the king's confidential minister.
The jurisdiction of the court was appellate only. There
is no hint of original jurisdiction, even in matters royal.
The wording is unmistakable. Every rib (cause) which
will come up to you from your brethren in the several "^arim
ye shall instruct them so that they trespass not against
JHVH and so wrath come upon yon. And the causes are
thus classed : ben dam le-dam (homicide cases, whether
murder or manslaughter) ; beti torah le-miswah^ le-htikkim
ti-le-mishpatim (this comprehends all other classes of cases).
The establishment of this appellate tribunal at Jerusalem
is described at large in Deuteronomy. The charge, how-
ever, which in Chronicles is addressed to the judges of the
supreme court, is here directed to the judges of the courts of
first instance in the several ''arim.
If there arises a case {dabar la-mishpat) of murder or
manslaughter {be^i dam le-dam) or any other cause {ben din
le-din uben nega la-nega\ dibre ribot), or any law, or an
assault, any controversy in thy cities {bishe'areka)^ arise
and go up to the makom which JHVH thy God will choose
THE ANCIENT HEBREW LAW OF HOMICIDE 97
for thee (Jerusalem). Go to the Kohanim^ the Levites,
and the shofet then in office, and inquire, and they shall
instruct thee as to the law. According to their pronounce-
ment thou shalt act, being heedful to obey exactly. Ac-
cording to the tor ah which they shall teach thee, and
according to the mishpat which they shall tell thee, must
thou act, swerving therefrom neither to the right nor the
left. And he that will act contumaciously {be-zadon), not
heeding the Koheji standing to minister there before JHVH
thy God, or the shofet, that man shall die that evil may be
removed from Israel. And the whole people shall hear
and fear, that there be no more contumacy (Deut. 17. 8-13).
Great care was exercised to give specific instructions
for the guidance of these judges in the ^arim. They must
have constituted an elaborate little code, fragments of
which are still preserved.
One of the most interesting is in Exodus.
Do not heed a popular cry to convict nor decide a
cause, either to please the powerful {rabbim), or to favour
the poor {dal, ebyon) (Exod. 23. 2, 3, 6).
Abhor a false cause, nor condemn to death the naki
(once acquitted), or the saddik (one that is innocent). The
guilty cannot escape the justice of heaven (Exod. 23. 7).
Take no gift (shohad). It blindeth the wise and
perverteth the cause of the innocent {dibi'c saddikim)
(Exod. 23. 8).
Do not oppress a ger ; ye know a gers life ; ye were
yourselves gerim in Egypt (Exod. 23. 9).
Here is another from Leviticus :
Do no unrighteousness in mishpat \ respect not the per-
son of the poor {dal)^ nor honour the person of the mighty
{gadol). Judge in righteousness {be-sedek) (Lev. 19. 15).
S. H
98 THE ANCIENT HEBREW LAW OF HOMICIDE
Be not a prosecutor (rakil), nor be thou eager for thy
neighbour's blood (19. 16).
Hate not thy brother in thy heart, nor wantonly rebuke
him, nor fasten guilt upon him (19. 17).
Nurse no vengeance or grudge, but love thy neighbour
as thyself (19. 11). Do no unrighteousness in mishpat with
respect to middah (measurement), to mishkal (weight), or to
mesurah (content) (19. '^^,
Deuteronomy has several.
Moses says : I charged your shofetivi at that time :
Hear both sides {shamoa ben ahekem) and judge righteously
(sedek) between them, ezrak orger (Israelite or non-Israelite)
(Deut. I. 16).
Do not respect persons in mis/ipat, hear the little as
well as the great, fear not the face of man, mishpat is of
God. The cause that is too hard for you, bring it to me ;
I will hear it (Deut. i. 17).
JHVH regard eth not persons nor taketh gifts (shohad) ;
He deals mishpat for the fatherless and the widow, He loves
the^^r (Deut. 10. 17, 18).
Shofetim and shoterim appoint thou in all thy cities
(shearekd) which J H VH thy God giveth thee to thy tribes,
who shall judge the people with just judgement [mishpat-
sedek). Thou shalt not wrest judgement {mishpat), nor
take a gift {shohad)^ for shohad blindeth the eyes of the
wise and perverteth the cause of the innocent (dibre saddi-
kim). Justice, justice shalt thou follow (Deut. 16. 1^-20).
The fathers shall not be put to death for the children,
neither shall the children be put to death for the fathers.
A man shall be put to death for his own crime {be-hefo).
Pervert not the mishpat of the ger nor of the fatherless
(Deut. 24. 16,17).
THE ANCIENT HEBREW LAW OF HOMICIDE 99
If men have a controversy (rib) and bring it for judge-
ment, the judges shall acquit the innocent {saddik) and
convict the guilty {i^ashci) (Deut. 25. i).
Artir he that taketh shohad to condemn to death one
who was once acquitted {naki) (Deut. 27. 2.5 ; cf. Exod. 23. 7).
That the system so established was complete is mani-
fest. The details in Lev. 19. '^^ show that the judges were
custodians of standards of weights and measures, and this
is an index of the care exercised to judge righteously.
The penalty of death for one kind of bribery appears
to be fixed in Deut. 2^7. 25, and the deliberate disregard of
the decision of the supreme court was declared a capital
offence in Deut. 17. 12.
With the establishment of this system the whole
machinery of sanctuary, of separated city, of ^are miklat^
of go el ha-dam, as well as the judicial functions of the
zikne ha-Hvj of the several cities and of the '^Edah^ were
swept away, and kofer fell into oblivion.
The great question of murder or manslaughter {ben dam
le-dam) was tried in every Hr according to the principles
of the Hebrew law, as authoritatively expounded by the
supreme court at Jerusalem. All vestiges of Canaanite law
disappeared, leaving only a few literary survivals buried in
this or that phrase or odd sentence of the legal codes.
When Jehoshaphat died in 849 B.C., he well deserved
as an inscription on his monument the words of the
Chronicler (3 Chron. 19. 4) :
' He went out among the people from Beersheba to
Mount Ephraim and brought them back to JHVH, the God
of their fathers.'
It is a strange trait of universal history that men who
accomplish beneficial changes in the law of their country
H %
lOO THE ANCIENT HEBREW LAW OF HOMICIDE
remain obscure, while the names of warriors, who often
afflict it with miseries, go sounding through the ages. It
happens that the men who carried through Jehoshaphat's
plans are known. The Chronicler has preserved their
names. No one reads them. In this legal essay, however,
they deserve to be repeated.
The princes {sarini) who led the movement were : Ben-
hail, Obadiah, Zechariah, Nethanel, and Micaiah. The
Levites were Shemaiah, Nethaniah, Zebadiah, Asahel,
Shemiramoth, Jehonathan, Adonijah, Tobijah, and Tob-
adonijah ; and the priests (kohanini) Elishama and Jehoram
(2 Chron. 17. 7, 8).
All honour to this great company of statesmen and
jurists, benefactors of mankind, and to their master,
Jehoshaphat !
It is pleasant to fancy that some such sentiment in-
spired the prophet Joel to name the place where, on the
great day, the nations were to be judged, the Valley of
Jehoshaphat (Joel 4. 2, la).
The firm establishment of the Hebrew law in Judah
must have influenced the northern kingdom. Jehoshaphat
and the kings of Israel were in close alliance, Jehoshaphat's
son and successor married King Ahab's daughter, and the
two kingdoms marched peacefully side by side. Neverthe-
less, the movement for Torahy law, was slower in the north
than in the south. In our second lecture reference was
made to the hostile criticism on this subject uttered
a hundred years later by the prophet Amos.
The success of these great reform measures had incidental
consequences, in modifying methods of legal procedure,
and in rooting out some legal principles which revolted the
Hebrew conception of justice.
THE ANCIENT HEBREW LAW OF HOMICIDE lOI
In Canaanite law the presence of the accused was not
necessary. The zikne ha-ir could try and adjudge his case
in his absence. Moreover, at such trial the accuser was
the all-sufficient witness. Then, too, a man acquitted might
be tried again. Twice in jeopardy was no defence.
These features of Canaanite law are inferred from the
energetic opposition to them in the Torah. That the old
law permitted the trial of a person in his absence, appears
from the demand of the anshe ha-Hr of Ophrah, that Gideon's
father should surrender his son for execution, the latter
having been convicted of a capital offence. Had he been
present, participating in the trial, the demand would have
been superfluous (Judges 6. 30).
And there is another similar case under the law of the
zikne ha-'^ir. A woman charged with gross fraud on the
marital relation may be tried in her absence and brought
out for execution (Deut. 22. 21).
In the Hebrew law a trial in the absence of the defendant
was inconceivable. Even in the days of oracle trials, which
were not trials in the legal sense, there being no issue
between parties, the accused were always present. The
reported cases attest this fact (Achan s case, Joshua 7. 14-
18 ; Jonathan's case, i Sam. 14. 38-42).
When trials were instituted, the rule was still more
strongly insisted on (Deut. i. 16, 17).
That one witness was all that the Canaanite law required,
and that a man might thus be at the mercy of an enemy,
is readily inferred from the almost passionate opposition of
the Hebrew code to that practice.
' The murderer shall be put to death by the mouth of
witnesses. One witness shall not testify against any person
to cause him to die' (Num. '^^. 30).
I02 THE ANCIENT HEBREW LAW OF HOMICIDE
' At the mouth of two witnesses, or three witnesses, shall
he that is worthy of death be put to death ; at the mouth
of one witness he shall not be put to death. The hands
of the witnesses shall be first upon him to put him to
death, and afterward the hand of kol ha-'^ani ' (Deut. 17.
6,7).
* One witness shall not rise up against a man for any
crime or misdemeanour charged against him ; at the mouth
of two witnesses, or at the mouth of three witnesses, shall
the matter be established ' (Deut. 19. 15).
In the Northern Kingdom, which was less zealous than
Judah in protecting the Hebrew law against Canaanite
infusion, the rule of two witnesses was firmly established
in the time of Ahab, the friend and contemporary of
Jehoshaphat (i Kings iZi. 10, 18).
So rooted was the idea of two witnesses in the Hebrew
mind that when JHVH instructed the prophet Isaiah to
take a roll and write in it concerning Maher-shalal-hash-
baZy he did so with two witnesses (Isa. 8. 2). Jeremiah
called in subscribing witnesses to a deed (Jer. 32. 10, 12),
and in his prayer afterwards he refers this fact to the express
command of JHVH : Thou didst say to me,0 Lord JHVH,
Buy the field for money and take witnesses (Jer. 32, 25).
That the Canaanite law permitted a man accused and
acquitted to be tried again, and convicted and punished, is
provable by the same character of evidence. The Hebrew
law piles protest upon protest against punishing the naki,
the man once acquitted.
When it is remembered that down to the time of David
certain cases were tried by the oracle, it becomes apparent
that an acquittal, being recognized as the judgement of
Heaven, and as such infallible, was necessarily final and
THE ANCIENT HEBREW LAW OF HOMICIDE 103
irreversible, and that another trial for the same offence was
inconceivable.
Hence the criminal law has a terminology of its own
which brings out necessary distinctions. An innocent man
is saddik, a guilty one rashd. To acquit the innocent is
hisdik, to convict the guilty is hirshia\ to acquit one who
has committed a transgression, or to allow him to escape
conviction, is nikkah.
The difference between an innocent man and one
legally declared to be innocent by acquittal, is also marked.
The former, as has been said, is saddik (innocent), the latter
is naki (not guilty).
In this exculpatory verdict there lurked then, as in our
own day, the hidden thought which the Scotch broadly
speak out by their verdict of not proven. This comes out
clearly in one of the laws of the judge-code, already referred
to : Do not condemn to death the naki or the saddik ; for
I will not acquit the guilty (Exod. ^^3. 7). The judge is
here exhorted to have no scruples about freeing the naki,
however strongly he may be convinced of his guilt, and of
the error which produced the former acquittal. He is
forcibly reminded that there is justice in Heaven which
corrects human errors. In that tribunal a guilty man
cannot plead his former acquittal by an earthly court.
So, too, in Deut. 19. 10. Elaborate provision is there
made in order that a man guilty of manslaughter, which
is not a capital offence, shall not be put to death. The
declared object is that the blood of the naki shall not be
shed, an act which would bring blood-guilt {damim) upon
the whole community. The man guilty of manslaughter
and punishable, therefore, is naki (acquitted of murder).
Indeed, the word naki very often means to be freed
I04 THE ANCIENT HEBREW LAW OF HOMICIDE
from something, in contrast with the idea of having been
entirely y^^^ from any connexion with it.
If Abraham's messenger should do his errand and
others cause it to fail, he shall be 7iaki (freed, acquitted)
of his obligation (Gen. 34. 41). And the word is used in
a like sense in Joshua 2. 17-20. If a man's ox gore a man
to death, his owner shall be naki (i.e. acquitted of guilt
under certain circumstances) (Exod. 21. 28-32).
When the community has ceremonially cleared itself
of blood-guilt {nikkapper) for one slain by an unknown, it
prays to be naki (acquitted) (Deut. 21.8).
A man whose place is in the army is freed {naki) from
that duty when he has newly married (Deut. 24. 5).
There are many passages which bear out our interpre-
tation of saddik^ rasha\ hisdik, hirshia\ and nikkah. Here
are some of them : i Kings 8. 32 ; 2 Chron. 6. 23 ; Exod. 21.
28 ; 22. 8 ; 23. 8 ; Deut. 25. i, 2 ; Isa. 5. 23 ; 2 Sam. 14. 9 ;
15. 4; Exod. 20. 7; Deut. 5. 11 ; Jer. 30. 11 ; 46. 28 ;
Amos 2. 6 ; 5. 12 ; Joel 4 (3), 21 ; Nahum i. 3 ; Ps. 94. 21 ;
Prov. 17. 15, 23, 26; 18.5,17; 19.5,9; 24. 24; Job 9.. 20;
34. 17.
Perhaps the most objectionable feature of Canaanite
law was a remnant of a prehistoric lex talionis^ which had
as a consequence that for the crime of the father, the son
might be put to death, and perhaps also that for the crime
of the son, his father might be put to death.
The only concrete case on this subject is unfortunately
hypothetical, and, worse still, fictitious. The wise woman
of Tekoa states the law to be that, when a man who has
a son and heir, kills another who has not yet a son and
heir, the murderer and his son shall both be put to death.
Strange as this may seem, it is quite in the spirit of the
THE ANCIENT HEBREW LAW OF HOMICIDE IO5
Code of Hammurabi. The murderer is punished because
of his crime ; his son is executed because, if he were not,
the murderer's position would be superior to his victim's ;
whereas the object of the Code is to make the criminal's
disadvantage just as great as that suffered by his innocent
victim. That the son had done nothing to deserve death
was purely irrelevant in a system of laws which judged the
guilt, in acts which we look upon as high crimes, by results
and not by intentions or motives ; which, in short, looked
upon penalties, however personal and severe, as being in
the nature of damages for private trespasses, demanding
just compensation, regardless of motive. That children
were in some sense the father's chattels, and not free citizens
of the state, is a proposition involved in the other. Their
feelings or sufferings did not enter into the legal thought of
the Hammurabi Code. Hence, when a man's son was
doomed to death for his father's offence, it was the father
who was being punished, just as if he had been deprived
of a slave, of a ship, or of any other valuable chattel.
This principle was repellent to Hebrew law, being in
direct opposition to the Hebrew thought that before in-
flicting capital punishment for homicide, the murderous
intent, the malice aforethought, of the perpetrator must be
established. The rule of individual responsibility thus laid
down, swept away all laws based on the contrary principle.
Nothing was, however, left to inference. It was set down
in plain and unmistakable words. Hence the declaration :
Fathers shall not be put to death for children, nor
children be put to death for their fathers. For his own
crime only can a man be put to death (Deut. 14. 16 ;
2 Kings 14. 6 ; 2 Chron. 25. 4).
Ezekiel, too, incidentally refers to the subject. He is
Io6 THE ANCIENT HEBREW LAW OF HOMICIDE
addressing his fellow exiles in Babylonia (c. 590 B.C.).
He finds that their patriotic spirit has been weakened,
and that they are settling down to the belief that the
nation will never be restored to its home. In short, they
are comfortable and quite content to remain in the new
land. Verbally, however, they declare the Exile a calamity,
and invent reasons why they are so severely punished. It
is the fault of their ancestors, who, while they ruled the
land of Israel, failed in duty to JHVH. It is this insincere
casuistry which Ezekiel is belabouring. He reproaches
them with applying to their circumstances a heartless and
untrue popular saying : The fathers have eaten sour grapes,
and the children's teeth are set on edge. He intimates
that they are absorbing alien ideas and setting them higher
than the wisdom of their ancestors ; that they are quoting
alien proverbs, and wrathfully exclaims: What mean ye,
that ye use this proverb concerning the land of Israel?
And then he delivers JHVH'S message, that every indivi-
dual soul is the Lord's, and goes on with a subtle satire on
Babylonian legal conceptions, which are at the bottom of
the objectionable proverb : The man that is guilty shall
be put to death. If a man be innocent and do what is
lawful and right, he is innocent (saddik) and shall live,
saith JHVH. If his son violates every law and right, he
shall be put to death ; upon him is the blood-guilt {damaw
bo). If this wicked son beget a good son, who does what
is lawful and right, he shall not be put to death for his
father's crime. He shall live. It is the guilty father who
must die for his own crimes. Turning on bis audience,
he tells them that their flippant use of the proverb, in
effect, means that the son should be punished for his
father's crime, whereas every man is answerable for himself.
THE ANCIENT HEBREW LAW OF HOMICIDE 107
And in his peroration he urges them to make for them-
selves a new heart and a new spirit, and Israel will revive
(Ezek. 18. 1-32).
It was the strong assimilative bent of the Babylonian
Golah which he deplored and was chastising, and in doing
so he brought home to them the inferiority of Babylonian
justice as compared with Hebrew justice. That he had in
mind certain provisions of the Code of Hammurabi is
scarcely to be doubted (Lecture I, Sees. 116, 210, and 230
of that code).
It was Zionism which Ezekiel was preaching, to rather
dull ears, as it seemed to him.
The nations (goyim) shall know that I am JHVH, and
I will take you from among their midst, will gather you
out of all lands, and will restore you to your own land
{^6. 23, 24).
And the climax of his optimistic eloquence on this
theme was reached in his 37th chapter, that wonderful
description of the reanimation of the scattered dry bones
into a glowing and glorious organism ('^j. 1-14).
Perhaps the most important and far-reaching of the
secondary conflicts between Canaanite law and Hebrew
law, arose over the question of the killing of a slave. First-
hand knowledge of the former we have none. There is,
however, the Hammurabi Code, which at least gives us
information as to the state of west-Asiatic law a thousand
years before the Hebrew conquest of Canaan, and the
influence of which must have been appreciable in Palestine.
According to it, there were at least three contingencies
to be considered. The slave might have been killed by
a freeman other than his master, by a slave or by the
master himself
Io8 THE ANCIENT HEBREW LAW OF HOMICIDE
The whole tenor of the Code shows that the resolutions
were as follows. The freeman who killed another man's
slave had to furnish another in his stead or pay his value,
to wit, one-third of a mina of silver (Sees. ] i6, 219, 231, 252).
This appears to have been the money value of a slave
male or female (Sees. 116, 214).
If a slave killed another man's slave, there is nothing
in the Code to make his master answerable, in money or
otherwise. Nor is there any indication that the slave
was punished, except perhaps by the loss of his ear or his
ears. The Code had great regard for property, and slaves
were property. The only punishment that could be inflicted
on them, without materially reducing their working-power
and consequent value, was cutting off their ears. Accord-
ingly, we learn that if he have struck the cheek of a freedman
(Sec. 205), or have repudiated his master (Sec. 282), in cither
case he loses his ear. That the fear of abating his value con-
trolled the policy of the statute, appears from the fact that
where an assault by a freeman is punishable by mutilation,
it is the offending hands that are cut off (Sees. 195,218, 226),
and where a freeman has spoken that which is criminal, it
is his guilty tongue that is cut out (Sec. 192).
As the Code does not treat of homicide, it throws no
direct light on the question of what would happen to the
master if he killed his slave. The general principle, how-
ever, is clear, that the slave is the mere chattel of the master.
If any one kills or maims him, he must pay the master,
who, according to the law, is the only one that suffers legal
injury (Sees. 116, 219, 231, 252, 199, 213, 220, 232).
Another noticeable fact is that while assaults without
evil consequences are punished if committed on gentlemen
or freedmen (Sees. 202, 203, 204), there is nothing said about
THE ANCIENT HEBREW LAW OF HOMICIDE 109
an assault on a slave, evidently on the principle that if his
value has not been impaired, his master has suffered no
injury, and he himself is legally incapable to sustain legal
injury, injuria.
We m,ay fairly conclude that according to the Ham-
murabi Code, if a man killed his slave it was his own
concern purely. He was the only loser.
Whether the Canaanite law of 3 000 B.C. was like the
Hammurabi Code is impossible to know, but that it had
points of resemblance to it may fairly be inferred from the
attitude of the Hebrew law on the subject.
Exod. 21. 20, 21, 26, 27, 32 is an important little slave-
code. It declares as a principle that the slave is the
master's property (kaspo hu) (21. 21), and then proceeds to
enact exceptions which destroy the rule.
They are as follows :
Exod. 21. 20. If a man smite his male slave {'ebed) or
his female slave (amah) with a rod (shebet) and
death is produced under his hand, nakom yinnakem
(Authorized Version: he shall be surely punished).
Exod. 21. 21. Notwithstanding if he continue a day or
two (yom 0 yomayim), lo yitkkam (Authorized Ver-
sion : he shall not be punished), for he is his money
{ki kaspo hu).
Exod. 21. 26. And if a man smite the eye of his male
slave {^ebed) or the eye of his female slave (amah)
that it be destroyed, he must free him.
Exod. 21. 27. And if he smite out the tooth of his male
slave ('ebed) or the tooth of his female slave (amah),
he must free him.
Exod. 21. 32. If a goring ox push (to death) a male
slave i^ebed) or a female slave (amah), the owner of
no THE ANCIENT HEBREW LAW OF HOMICIDE
the OX shall pay unto the owner of the slave thirty-
shekels of silver, and the ox shall be stoned (to death).
The significance of this. Code is that the slave is recog-
nized as a member of society, and certain acts injurious to
him are declared to be crimes against the state and punish-
able by it. If he be maimed by the master so that he
loses an eye or a tooth, the state frees him. If he be mur-
dered by the master, there is nothing to exempt the latter
from the operation of the general law, which punishes that
crime with death. If, however, he die under his master's
hand in consequence of the latter's whipping, it is not
murder punishable by death, but it is a crime, and the state
inflicts a punishment, nakoni yinjtakein, whose nature we
shall discuss in the next lecture. If, however, he do not
die till the day after the whipping, there is no punishment.
If the slave be murdered by another, the latter, whatever
be his station, is undoubtedly guilty of a capital offence.
If, however, he be killed by a goring ox, under the
circumstances, which in the case of a freeman's death would
entail the payment of vindictive damages {kofer^ ivergild),
the owner of the ox merely pays the owner of the slave
thirty silver shekels and the ox is stoned.
When we consider the provisions of this little slave-code
in the light of all the authorities, there is much material for
reflection. When the Hebrews acquired the land of Canaan
they found slavery in existence, and were unable to abolish
it. That this failure was a severe blow to the Hebrew
authorities the whole literature attests. Upon every occa-
sion it is declared that escape from Egyptian slavery was
the beginning of JHVH's kingdom in Canaan, and that
freedom is the foundation of JHVH's commonwealth.
Remember this day in which ye came out from
THE ANCIENT HEBREW LAW OF HOMICIDE III
Egypt, out of the house of slavery {bet ^abadim)
(Exod. 13. 3, 14 ; 20, 2 ; Deut. 5. 6).
I am JHVH, your Elohim, who brought you forth
out of the land of Egypt that ye should not be their
slaves (abadim)^ and I have broken the bonds of your
yoke and made you go upright (Lev. 26. 13).
Thou shalt say unto thy son : We were Pharaoh's
slaves i^abadim) in Egypt, and JHVH brought us out
of Egypt with a mighty hand (Deut. 6. 21 ; 7. 8).
Lest thine heart be lifted up, and thou forget
JHVH, thy Elohiin^ who brought thee forth out of
the land of Egypt, from the house of slavery {bet
'abadim) (Deut. 8. 14; 13. 6 (5); 13. 11 (10)).
I brought thee up out of the land of Egypt and
redeemed thee out of the house of slavery (bet ^abadim)
(Micah 6. 4).
I made a covenant with your fathers in the day
that I brought them forth out of the land of Egypt,
out of the house of slavery {bet ^abadim), as follows :
At the end of seven years let ye go every man his
brother a Hebrew, who hath been sold unto ye. And
one who hath served you six years send him out free
(at the end of the six years) (Jer. 34. 13, 14).
Ye have not hearkened unto me in proclaiming
liberty {deror) every one to his brother and every one
to his neighbour (Jer. 34. 17).
Proclaim liberty {deroi-) throughout all the land
unto all the inhabitants thereof (Lev. 25. 10).
Efforts to abolish slavery began at an early day. The
first step was to destroy the master's absolute power over
the life of the slave, and to convert perpetual slavery into
serfdom for a limited period (six years) (21. 2). At this
112 THE ANCIENT HEBREW LAW OF HOMICIDE
point the opposition was too great, and the federal govern-
ment had to yield its principle of the equality of the ger.
The latter was not included in the serfdom statute. Even
in its modified form, the emancipation measure was not
completely successful. The masters were powerful enough
to compel the government to permit the perpetual slavery
of the Hebrew ezraJi by the device of a voluntary contract.
A form of procedure was invented (21. 5, 6), by which the
policy of the state was overcome. Such a law would have
been impossible if the government had felt itself able to
resist. The ancient Hebrew jurists saw, just as clearly as
do we, that fundamental state policies ought not to become
the plaything of the greedy and the ambitious, under any
circumstances, and that their nullification by private indi-
viduals, whether under the name of contract or otherwise,
is inconsistent with the state's sovereignty. Nevertheless,
they yielded, because no other course was open to them.
Notwithstanding these drawbacks, the advance made
inaugurated an era of human progress.
One who kidnapped a man to enslave him, suffered
death (Exod. 21. 16). Hammurabi's Code had a similar
provision for the protection of freemen (Sec. 14), but its
fanatical enthusiasm for slavery was displayed by de-
nouncing the death penalty against one who attempted to
free a slave (Sees. 15, 16, 19).
The important point, however, was that for the first
time the state made the slave's right to life and limb its
own concern. That even in this it had to make concessions
is true, but with all its incompleteness, it was the foundation
of a new world for the very poor. The lordly classes
learned that it was not at their will that the underworld
enjoyed life, nor was it within their province to destroy it.
THE ANCIENT HEBREW LAW OF HOMICIDE II3
The terms nefesh, ish, adam, red (man, neighbour) took on
a new meaning (Gen. 9 56; Exod. 21. 12; Lev. 24. 17,
21 ; Num. '>^^. 30 ; Deut. 19. 11; Josh. 20. 3). A slave was
at last a man, a ben-adam.
In the light of this advance, the halting features of the
statute are not as important as at first they seem.
The 20th and 21st verses, which define the crime of
a master whose slave dies in consequence of his whipping
as less than murder, are in harmony with the general law
that without malice aforethought there cannot be murder.
In the case put there is everything to exclude the idea
of malice. On the contrary, the master is acting according
to his right and, in the thought of that day, according to
his duty. It is not the case of a wanton assault ; it is a
case of lawful whipping, not with anything that caprice
or anger may dictate, but with the lawful instrument in
general use for that purpose, the rod [shebet). If it were
any other weapon, the master would no longer have the
benefit of this provision, but would come under the general
law regulating homicide (Num. '>,^, 16, 17, 18).
It is true that whipping with the shebet sometimes
resulted in death, but it was permitted by law, and regula-
tions concerning it were enacted (Deut. 25. 2, 3 ; 2 Sam.
7. 14). No danger was apprehended from it. * If thou
beatest him with the shebet^ he will not die' (Prov. 23. 13).
Parents were admonished to use it in correcting the faults
of their children (Prov. 13. 24 ; 22. 15 ; 23. 13 ; 29. 15). It
was therefore the master's usual and proper instrument for
disciplining the slave.
In view of the master's pecuniary interest in the life
and work of his slave, an intent to disable or kill him could
not fairly be presumed. If, therefore, the slave died, the
s. I
114 THE ANCIENT HEBREW LAW OF HOMICIDE
reasonable presumption was to ascribe the death to his
constitutional weakness. And it is this presumption which
is embodied in the 2Tst verse, that if the slave do not die
on the day of the whipping, the master goes free. But if
he die on the day of the whipping, this presumption is
rebutted and overcome, and the master must suffer his
punishment.
The effect of this law was to compel the master to
remember that in administering punishment, he was in
a sense exercising a public function, and that the day for
considering it his private affair was over. Just as Deut.
25. 2, 3 prescribed moderation in whipping to courts and
their officers, so the statute imposed it on masters.
It is certain that this law did not abolish slavery, but
it so ameliorated its features that its gradual disappearance
might reasonably be hoped for. That these hopes were
never realized to the full, it is needless to say. Every
advance of mankind begets a desire for further improvement.
This is the immutable law of progress.
When slavery had largely disappeared, economic
equality did not result. The freed slaves doubtless fell
into the ranks of the sekirim^ the dallim^ and the ehyonim
of later ages, who, with their great spokesmen, the writing
prophets, agitated for the betterment of their lot.
There remains for consideration the meaning of the
term nakom yinnakem^ which is the punishment imposed
by the law (Exod. 21. 20) on the master whose slave dies
during a whipping or afterwards on the same day. This
involves a consideration of Hebrew modes of punishment
for crimes, and may well be deferred to the next — the last
lecture of this series.
THE ANCIENT HEBREW LAW OF HOMICIDE II5
V
The notions of punishment, retaliation, and revenge are
nearly allied. Revenge is the primitive and unregulated
impulse to hurt one who has inflicted an injury. Retalia-
tion is revenge modified by a sense of justice and due
proportion. It operates in two ways. Either it inflicts
upon the wrong-doer, as nearly as may be, the kind and
quantity of harm he has done, or it ascertains the particular
portion of his body which has been the instrument of the
wrong, and deprives him of it by mutilation. Legal
punishment, while it has as basic element the idea under-
lying the other two, is essentially different in this, that
while they keep in mind a certain personal satisfaction to
the injured party, it regards nothing but the welfare of the
whole community.
Revenge, as a general rule of conduct, necessarily ends
when society becomes reasonably organized. It is then
that retaliation, the lex talionis, is introduced. The state
is not yet exercising all of its proper functions, but leaves
some of them to be administered by constituent sub-
divisions, whether they be families, clans, tribes, or guilds.
In doing this it is not neglecting its duty. It has
simply not become conscious of it. Early states are all
politico-ecclesiastical, that is, they have a civil and eccle-
siastical government, however rudimentary, and these
constitute the ruling power. By the natural law of self-
defence, they resist aggression directed against these
functions. Hence it is that the acts which early states
recognized as crimes or offences against the commonwealth
are those which are of a public nature, a kind of treason
against church or state, and they are generally viewed as
worthy of death.
I a
ir6 THE ANCIENT HEBREW LAW OF HOMICIDE
Offences against private individuals are, at this stage,
looked upon as trespasses, mere civil injuries, with which
the community as a whole has no other concern than to
preserve the peace, so that the safety of the state may
not be endangered. To this end it establishes tribunals
which arbitrate between disputants and determine what
satisfaction the one shall give the other. This view is so
fundamental that even now states do not otherwise
interfere between individuals in the great mass of trans-
actions and disputes.
The time comes, however, when states recognize that
there are some wrongs inflicted on private individuals
which, if not vigorously checked, indirectly sap the foun-
dations of the state. These are then treated as crimes
in analogy to those acts which are direct assaults on the
state.
Of all the trespasses thus advanced to the degree of
crime, the most important is homicide. The advance,
however, is not made at one leap ; it goes by stages.
While the retaliatory state subsists, the individual is never
compelled to stand alone. His family, clan, tribe, or
guild constitutes a kind of corporation, which assumes the
duty of guarding or avenging the lives of its members.
Of such corporations there may be many in a state. If
a member of one of them kills a member of another,
the latter retaliates in kind. There is as yet no sufficient
development of comity between these constituent bodies
to provide for arbitration, for judicial investigation, and
hence the rude justice of the lex talionis is established.
If, however, the slayer and the slain are both members
of the same subdivision, the rule does not apply. No
organization could grow or achieve permanence if it
THE ANCIENT HEBREW LAW OF HOMICIDE II7
invariably supplemented the killing of one of its members
by the destruction of another in a continuing series. A
new interest, the communal, intei-venes to regulate private
feuds within the organization. Hence arises legal punish-
ment to replace the lex talionis.
In a state in this stage of organization, both systems co-
exist, a rudimentary kind of legal punishment for offences
within the subdivision, retaliation for those without.
The superiority of the system which bases punishment
on communal policy over that of mere retaliation, becomes
apparent by degrees. In time it is fully realized, and then
the state withdraws from subordinate organizations the
function of dealing with crime and itself assumes it, to
the exclusion of all other authority. Then it is that a
state may be said to be fully organized.
This form of opinion arises when a country is sub-
stantially consolidated, when its inter-clan feuds have been
practically abolished, when individual citizens feel them-
selves in direct and intimate relation with the state, and
the state becomes conscious that these citizens are its true
and ultimate constituents.
The national mission of keeping the peace between its
constituent tribes or clans has been accomplished, and in
its place comes the national duty of keeping the peace
between its individual citizens. The function of preventing
the decimation of one clan by another is replaced by that
of preventing one man from killing another. Individual
responsibility being established, the mild internal homicide
law, which inter-clan hostility created, must be modified
so that wilful murder shall be inexorably punished by
death, while less guilty kinds of homicide shall not be
condoned by mere money payments.
Il8 THE ANCIENT HEBREW LAW OF HOMICIDE
The Hammurabi Code shows us Babylonia in the
retah'ation stage, from which it is scarcely beginning to
emerge. It has not yet made homicide the affair of the
state. Evidently the lex ialionis is in full force between
the several constituent bodies of the state. As regards
minor offences, it has numerous provisions for inflicting on
the perpetrator of a personal injury, the same kind of hurt,
and has many others for mutilation, by cutting out or
cutting off the perpetrator's offending member, the eye
for evil looks (Sec. 193), the tongue for evil speech
(Sec. 192), the hands for evil blows (Sec. 195), the breasts
for a nurse's wrong-doing (Sec. 194), and so on.
It has been many times said, and is constantly repeated,
that the lex talionis is the law of the Torah.
When it is remembered that the Hebrew law provides
for a careful trial of the accused, and declares that malice
aforethought must be ascertained or the offence is not
capital, it is scarcely necessary to repeat that alongside of
this law there could not be recognized another which
ignores all these points and dooms to death the man who
has just escaped the death sentence. The notion that two
systems of law so contrary to each other can be applicable
in the same case, in the same place, at the same time,
is too wild for serious consideration. Yet there is a
general opinion that 'the Avenger of Blood' had but to
wait outside of the court room until the tribunal had
acquitted the prisoner, and that then he lawfully killed
him, and that the tribunal acquiesced in this disposition
of the case.
It is interesting to trace the history of this widely-
diffused error.
There seems to have been in pre-Hebraic times a maxim
THE ANCIENT HEBREW LAW OF HOMICIDE II9
professing to sum up in popular speech the character and
effect of the law of retaliation. It survives in the Pentateuch
in three versions, each somewhat varying from the others.
Its origin was probably in the remote past, when it may
have been in substantial accord with the law of retaliation
as then practised. That it was older than the Hammurabi
Code is plain. The latter had already advanced to the
point that between ordinary citizens it did not demand
an eye for an eye, or a tooth for a tooth, but was satisfied
with a mina of silver for an eye and a third of a mina of
silver for a tooth. Changes in the law, however sub-
stantial, do not seem to affect the life of such maxims.
Men go on repeating them, unconsciously converting the
literal into metaphorical meaning, so as to avoid doing
violence to their actual opinions.
Of this truth, the maxim under consideration is a
striking illustration. In order that this may be the better
understood, we must look not only at the various texts
of the maxim, but at the context in which they are em-
bedded. These will show the circumstances under which
it was cited, and the purpose of citing it.
The first of the versions is in Exodus, chapter 21.
Here are text and context :
Exod. 21. 22. If men strive and hurt a woman with
child, so that her fruit depart from her, and yet no
mischief follows, he shall be surely punished according as
the woman's husband will lay upon him ; and he shall
pay as the judges determine.
21. 23. And if any mischief follow, then thou shalt
give life for life {nefesh tahat nefesh),
21. 24. Eye for eye, tooth for tooth, hand for hand,
foot for foot.
I20 THE ANCIENT HEBREW LAW OF HOMICIDE
21. 25. Burning for burning, wound for wound, stripe
for stripe.
The Deuteronomy version is contained in the following :
Deut. 19. 16-18 provides for the trial of a witness on
the charge of perjury in a trial for the capital offence of
sarah (Hebrew Polity^ pp. 51-61).
19. 19. (If convicted) then shall ye do unto him, as he
had thought to have done unto his brother ; so shalt thou
put the evil away from among you.
19. 20. And the rest will hear and fear and will not
henceforth commit such evil among you.
19. 21. Have no pity: Life for life {iiefesh be-nefesh)^
eye for eye, tooth for tooth, hand for hand, foot for foot.
The Leviticus version is part of a peculiar text, con-
cerning which something was said at the end of the third
lecture. It is as follows :
Lev. 24. 10-16 is the report of a trial for blaspheming
the Skeniy the decision and the law promulgated thereupon,
that one guilty of that offence must be stoned to death
by the ^Edah^ and that the ger is just as amenable to this
law as the ezrah,
24. 17. He that killeth any man shall be put to death.
24. 18. He that killeth a beast shall make it good
{yeshallemennah)^ beast for beast (nefesh tahat nefesh).
24. 19. If a man cause a blemish {mum) in his neighbour,
as he hath done, so shall it be done to him.
24. 20. Breach for breach, eye for eye, tooth for tooth :
as he hath caused a blemish {mum) in a man so shall it
be done to him.
24. 21. He that killeth a beast shall make it good
iyeshallemennah) and he that killeth a man shall be put
to death.
THE ANCIENT HEBREW LAW OF HOMICIDE 121
24. 32. Ye shall have one mishpat for ger as for ezrah.
I am JHVH your God.
24. 23. And Moses spake to the Bne-Israel that they
should bring forth him that cursed out of the camp and
stone him with stones. And the Bne- Israel did as JHVH
commanded Moses.
The maxim refers only to homicide and to maiming.
We know the Hebrew law of both. Homicide is either
murder, which is a capital offence, or it is manslaughter,
which is punishable by a form of imprisonment. Maiming
is a form of assault and battery. This offence also has two
degrees. It is either simple assault and battery, which
is punishable by compensatory damages (Exod. 21. 18, 19),
or it is aggravated assault and battery (of which maiming
is one kind), which is punishable by vindictive damages to
be assessed by the court {pelilim) (Exod. 21. 22).
The maxim in any of its forms contradicts the Hebrew
law of homicide and of assault and battery. It also con-
tradicts the pre-Hebraic Canaanite law of homicide, and
probably of assault and battery, because it excludes kofer,
or wergild, which was a recognized institution, against
which the great law reform waged war.
That it was a mere forensic statement appended to
the enunciation of a law, with which it had some fancied
relation, seems clear enough. The law of Deuteronomy 19
proves it. The offence of perjury in a trial for the capital
crime of sarah is made capital. The only punishment
that could be inflicted was death. It was a new capital
crime, and the promulgation of the law itself was followed
by the argumentative use of this popular maxim. There
could be no question of eye or tooth or hand or foot, and
yet we have the whole catalogue. The object is plain.
122 THE ANCIENT HEBREW LAW OF HOMICIDE
It is as if the herald who proclaimed the statute had
followed up his announcement by reminding them that
the perjured witness was only getting his deserts according
to the old maxim.
Its use in the Exodus statute is not for any other
purpose. I have already indicated that the text is de-
fective. It provides first for the punishment of simple
assault and battery, without serious consequences, by com-
pelling the assailant to pay for his victim's cure and for
his loss of time (Exod. 21. 18, 19). It then provides for
the corporal punishment of an aggravated assault on a
slave resulting in death (Exod. 21. 20). Finally it punishes
an aggravated assault on a woman which produces the
death of an unborn child. The penalty is the payment
of vindictive damages, and there the matter ends. That
if the woman too should die, corporal punishment would
follow, as in cases of manslaughter, is highly probable.
By corporal punishment I mean either scourging or im-
prisonment.
The texts, however, are confused, and are made to
say that the death of the unborn child does not change
the character of the offence from simple assault to aggra-
vated assault, because no ason (mischief, harm) results.
In the teeth of this saying there is the provision for
vindictive damages, which is itself the sign that the law
considers the injury serious. Then there is, too, the law
that manslaughter, the actual killing of a man in hot
blood or by casualty, is not to be punished with death.
Keeping this in mind, the idea that a man could be
capitally punished who hurt a woman without malice afore-
thought and without intent even to strike her, is simply
inadmissible. One may well suspect that some words
THE ANCIENT HEBREW LAW OF HOMICIDE I23
are missing from verse 23, which described an offence of
great gravity, and also provided a severe specific punish-
ment for it, and that the maxim was then invoked just as
in Deuteronomy. But even if this very probable hypo-
thesis is untrue, the maxim may have been quoted to
point a case of damages merely.
This is exactly what has happened in the Leviticus
text. He that killeth a beast shall make it good (shall
pay for it) (yeshallemennaJi) nefesh tahat nefesh. The
Authorized Version translates this leading phrase of the
maxim beast for beast, instead of life for life. And the
translation is a correct rendering of the meaning. It has,
however, not been perceived that the text, after it announces
a liability to pay money damages, quotes this very maxim
by way of support. We have, in effect, a definition which
declares that making good by a money payment a loss
inflicted, is an instance of the application of the old maxim
7iefesh tahat nefesh (life for life). And this Leviticus text
is the only one of the three which makes maiming {mum)
a separate form of aggravated assault and battery which
is to be punished in kind : ' As he hath done, so shall it be
done to him ' (Lev. 24. 19). And then follows the rest of the
maxim : breach for breach, eye for eye, tooth for tooth.
That this has no other meaning than that money
damages adequate to punish for the injury must be
assessed against the aggressor, is certainly inferable from
the apposition of yeshallememiah with nefesh tahat nefesh.
So read we have simply the same law as in Exodus 21. 22,
that in a case of aggravated assault and battery mere
compensation will not suffice, but the judges are to assess
vindictive damages against the aggressor proportioned to
the gravity of the injury.
124 THE ANCIENT HEBREW LAW OF HOMICIDE
There is another thing that must not be overlooked.
The maxim in its fullest form is found in the Exodus
text, and follows hard on a piece of old Canaanite law
(Exod. 21. 23-5). The Hebrew law of assault and battery
is uniform, that in no event, whatever the result, can the
penalty be death where the intent to murder is lacking.
Moreover, the cardinal principle of Hebrew law is that every-
body is equal before the law. The Code of Hammurabi,
however, devotes six sections to the case of assault on
a pregnant woman (Sees. 209-14 ). Five of these provide
for the payment of compensation only, the sixth (Sec. 310)
provides that if the victim be a gentleman's daughter, the
assailant's daughter shall be put to death. We have
already, in our first lecture, intimated that in later times
this provision must have been interpreted, even in Babylonia
and Assyria, to mean the payment of punitive damages, in
addition to compensation. It is an offshoot of this piece
of Babylonian woman-law which has somehow been pre-
served in our text, though it is in glaring contradiction to
every principle of Hebrew law. The reasonable explanation
is that among the old documents which went into the com-
pilation of our books, odd pieces of zikne ha-ir law, having
in them Canaanite admixtures, crept in and remained un-
detected, because they had become obsolete in practice.
There is just one other similar piece of Canaanite
woman-law with retaliatory features. It is contained in
Deuteronomy 25. 11, 12, and contrary to all Hebrew law
and practice, prescribes mutilation, the cutting off of the
offending hand, as punishment. It is, however, quite in
line with the Hammurabi Code, which prescribed mutila-
tion in no less than twelve sections (Sees. 192, 193, 194,
195. 196, 197, 200, 205, 218, 226, 253, and 282).
THE ANCIENT HEBREW LAW OF HOMICIDE 125
When we find obsolete Canaan ite laws thus recorded,
we need not be surprised to meet a popular Canaanite
legal maxim, which everybody quoted at all times, with
no definite meaning, but merely by way of illustration.
The fullest version of the maxim accompanies the gravid
woman's law of Exodus. In Leviticus the maxim is cut
in two. Its first and most significant member, nefesh
tahat nefesh, frankly means a money payment, and there
is no good reason for attributing to the less significant
phrases of the maxim a higher value than to its chief
portion. In Deuteronomy its use as a mere illustration
is palpably plain.
In determining what punishments were imposed by
Hebrew law, we ought not to overlook Ezra's views on
the subject. He was a Kohen and a thorough adept in
the law, * a ready scribe in the law of Moses '. He was
a leader of his people and had very definite ideas on the
subject of reconstructing the Jewish state in its pristine
glory. He must have been a person of eminence, or
otherwise he could not have obtained from Artaxerxes the
liberal charter which authorized him practically to rule
a new state which he was to found on the site of the old
Judea of his fathers, there to administer the Torah of
JHVH and to enforce its hok and mishpat. Moreover,
in the year 450 B.C., there were better means of knowing
and understanding the old law than are accessible to us.
That the terms of the charter originated with Ezra, can
scarcely be doubted. The document is in Ezra 7. 12-26.
These are the words : And thou Ezra, according to the
hokmat elahak which is in thy hands, set judges and
dayyanin to judge all the people beyond the river for all
such as know the laws of thy God, and as to those that
126 THE ANCIENT HEBREW LAW OF HOMICIDE
know them not, teach them. And whoever will not do
the law of thy God and the law of the King, let judgement
(dmah) be executed speedily upon him, whether for death
{le-mot), for banishment (lishrosht)^ for amercement of
goods {laanash niksin) or for imprisonment (esurin).
The Authorized Version renders shaftin we-dayanin^
magistrates and judges. There can be little doubt that the
author was translating shofetivi zve-shoterini (Deut. 16. 18),
and that therefore the rendering should be 'judges and
officers \ dayyan being the equivalent of shoter, who is the
official that executes the judgement of the court in the
manner of our sheriff.
The Ezra charter enumerates four kinds of punishment
for criminal offences.
The Torah knows of six :
Death: (Exod. 11. 12).
Karet: (Gen. 17. 14; Exod. 12. 15, 19; 30. ^^, 38;
31. 14, 15 ; Lev. 7. 20, 21, 25, 27; 17. 4, 9, 14; 18. 29;
19- 5-8> 13. 20 ; 20. 5, 17, 18 ; 32. 3 ; Num. 9. 13 ; 15. 30, 31 ;
19. 13, 20).
Amercement: (Exod. 21. 19).
Enslavement : (Exod. 22. 3).
Scourging: (Deut. 22. 18; 25. 2, 3 ; Lev. 19. 20).
Nakoni yinnakem : (Exod. 21. 20).
Two of these six (death and amercement), are plainly
specified in the Ezra charter ; two others (enslavement and
scourging ; a slave's punishment) had become obsolete
by the emancipation law, leaving for consideration only
Karet and nakom yinnakem^ which stand in the place of
Ezra's banishment and imprisonment.
That Karet in the early ages meant banishment, is
probable. The uncircumcised male (Gen. 17. 14) and
THE ANCIENT HEBREW LAW OF HOMICIDE I27
the man who flouted the celebration of the Exodus
(Exod. 12. 15, 19; Num. 9. 13), were both to be cut off
from among their people. These, however, were grave
offences against national duty. The rite of circumcision
was, in effect, the admission to the citizenship of the
nation, while the Passover celebration was the symbol of
the nation's birth which every patriot profoundly revered.
That a man who failed in these respects was looked upon
as a traitor, is not to be wondered at. Exile was not
deemed too severe a punishment.
There are, however, many other cases calling for the
punishment of karet which could not possibly have been
punished by exile. Such cases are the following : eating
the flesh oishelamim offerings while unclean (Lev. 7. 20, 21) ;
eating the fat of a fire-offering (Lev. 7. 25) ; eating blood
(Lev. 7. 27; 17. 14); killing an ox, lamb, or goat in the
camp and not bringing it as a korban (Lev. 1 7. 4, 9) ;
compounding an imitation of the holy oil (Exod. 30. '^^'^
or the holy perfume (Exod. 30. 38) ; eating of shelamin
offerings on the third day (Lev. 19. 5-8); committing
certain improprieties (Lev. 20. 18) ; eating of the kodashim
while unclean (Lev. 22. 3) ; failing to purify one's self when
unclean (Num. 19. 13, 20).
These are all trespasses which would be adequately
punished by temporary seclusion or excommunication.
To have banished from the land all persons guilty of
these ecclesiastical peccadilloes would have weakened the
kingdom.
That karet at any time meant the death-penalty is
highly improbable. Perhaps the strongest argument in
favour of the view that it did, may be derived from the
passages Exod. 31. 14, 15. In the former, one who works
128 THE ANCIENT HEBREW LAW OF HOMICIDE
on the Sabbath incurs the penalty of karet ; in the latter,
the penalty is death. This, however, warrants no other
conclusion than that the latter provision is an amendment
of the former. Indeed, there is distinct evidence that the
law was changed in some such manner. In Num. 15. 3^-6
there is a reported case of a man who gathered sticks on
the Sabbath. The authorities seem to have been in doubt
whether the offence was punishable. The oracle decided
that the penalty must be death by stoning.
The conclusion would seem to be that the punishment
of exile for working on the Sabbath was deemed impolitic,
and that the death-penalty, which might be expected to
prove a more effective deterrent, was at an early date
substituted by way of amendment.
Karet may therefore be said to have two meanings,
an older and a newer one ; the former being exile, and the
latter a lighter penalty to be borne at home for a limited
period.
Ezra seems to have adopted the older karet, that is
exile, for his new commonwealth, calling it sheroshi (up-
rooting) in his Aramaic.
Ezra's esurin (imprisonment) has no parallel in the
older law, unless it be found in the nakoin yinnakem of
Exod. 21. 20.
These words are rendered by the Authorized Version ;
he shall be surely punished. No substantial objection can
be urged against the mere translation of the words.
Literal translations, however, are but slight helps to the
understanding of technical terms. And that the term in
question is technical, there is little room for doubt. It
will be remembered that chapter 21 of Exodus contains
a code of laws which prescribe specific punishments for
THE ANCIENT HEBREW LAW OF HOMICIDE 129
certain offences. For murder, death (21. 12); for smiting
a parent, death (21. 16); for cursing a parent, death (21. 17) ;
for injuring a man in a quarrel, compensation (21. 19) ; for
smiting a slave with a rod which produces death, nakom
yinnakem (21. 20) ; for producing miscarriage, punitive
damages i^anoshyeanesh) (21. 22). The penalties are all
specific, and there is no reason to doubt that nakom yinna-
kem is likewise specific. The only difficulty is to dis-
cover what it was. That it was something more than
punitive damages, is obvious. It must have been some-
thing affecting the person of the culprit with some severity.
The particular term is unique, there being no other in-
stance of its use. The root-word is, however, common,
and it always denotes punishment of a serious character.
In Judges (15. 7 and 16. 28) Samson uses it to mean
the slaughter of a multitude. In 2 Kings (9. 7) Elisha
uses it to charge Jehu with the duty of destroying the
whole house of Ahab. Jeremiah uses it to describe a day
of JHVH's signal punishment of enemies (46. 10 ; 50. 15 ;
51. '^6). By Ezekiel it is used in a similar sense (Ezek.
25. 15), as also in Esther (8. 13).
That it cannot mean death is apparent from two facts :
first, the offender did not intend to kill the man, and was
therefore guilty only of manslaughter, and second, the
same code uses the technical term mot yumat in the
several cases when the offence is capital. It is true that
the Talmud (Sanhedrin 52 b) construed it to mean ' death
by the sword \ Its argument, however, though ingenious,
falls before the two facts already stated.
Nor is it likely to mean banishment from the land, which
is nearly as severe as the death penalty, and is moreover
already provided for under the name of Sheroshi. The fact
S. K
130 THE ANCIENT HEBREW LAW OF HOMICIDE
that a new crime was being created by law must not be
forgotten. Before this law the fact that the slave died
under his master's correction was no man's concern. In
the Code of Hammurabi the death of the slave rendered
the slayer liable to give the bereaved master another slave
in his stead. Other consequences there were none. If,
therefore, the master lost his slave by his own act, it was
his own money he was losing. This is good Babylonian
law, and it is one of the ironies of history that when the
Hebrew law fought this system, and won its first great
triumph over it, the record should be disfigured by the
intrusion into it of the Babylonian principle which it had
just overcome : ' The slave is but the master's money '
(kaspo hu) (Exod. ^i, 21), It and the lex talionis maxim,
which follows hard upon it (21. i'>r^y ^^'^ both of them
good Canaanite law. They are^ however, in direct con-
tradiction of Hebrew law.
On the other hand, it was not to be expected that
extreme punishment should be inflicted for an act which
men had just begun to look upon as an offence. This
view would negative banishment as the punishment meant
by nakom yinnakem.
Scourging, on the other hand, was in ancient Israel
fit punishment only for children, slaves, and paupers, and
would not be thought of for men of good condition. Only
for one offence, and that an infamous one, was the punish-
ment imposed on a freeman (Deut. %%. 18). And to this
effect writes Josephus {Ant,^ Book 4, ch. 8, Sec. 21) : The
punishment of stripes is a most ignominious one for a
freeman.
It need not therefore be thought of in this connexion.
This leaves for consideration only the question of im-
THE ANCIENT HEBREW LAW OF HOMICIDE 131
prisonment. There is a very common belief that the
ancient Hebrews did not know deprivation of liberty as
a punishment for crime. Against the correctness of this
supposition there is a mass of evidence which has not been
sufficiently weighed.
Very significant is the fact that there are eight several
Hebrew words denoting prisons, and, moreover, two of
these words are used in varying forms :
1. ha-mattarah is used by Jeremiah (3^^. 2, 8, i:z ; 33. 11 ;
37.21; 38.6,13,^28; 39. 14, 15); and Nehemiah (3.25; 12.39).
2. Masger is used by Isaiah (24. 22 ; 42. 7) ; and by the
Psalmist (142. 8).
3. Bet ha-pekudot is used by Jeremiah (52. 11).
4. Bet ha-bor is used in Exodus (12. 29) ; and by
Jeremiah {'>,']. 16).
The variant form bor is used by Isaiah (24. 22) ; by
Jeremiah (38. 6, 7, 9, 10, 11, 13); and most significantly
in Proverbs (28. 17) : A man oppressed by blood-guilt
(dam-nefesk) will flee {yaims) to the bor ; let no man
stay him.
5. Mishmar is used in Genesis (40. 3, 4, 7; 41. 10;
42. 17, 19); in Leviticus (24. 12); in Numbers (1,5. 34) :
* And they put him in mishmar^ since it was not declared
what should be done to him.' In Proverbs (4. 23) : ' As
in any prison [mishmar) guard thy heart; for out of it
are the issues of life.'
6. Bet ha-sohar is used in Genesis (39. 20, 21, 22, 23 ;
40. 3, 5).
7. Bet ka-asirim (M.T. astirim) is used in Judges
(16. 21, 25).
The variant form bet ha-esur occurs in Jeremiah
{?il' 15), and the form bet ha-surim in Koheleth (4. 14).
K 2
132 THE ANCIENT HEBREW LAW OF HOMICIDE
8. Betha-kele' occurs in i Kings 22. 27 ; 2 Chron. 18. 26 :
Put this man in prison (bet ha-kele') and feed him on
bread and water. And Jeremiah uses it (^"j, 15, 18).
The variant form bet ha-keli (M.T. bet ha-kehU) occurs
in Jeremiah 37. 4 ; 52. 31 ; while the form bet-kele' is used
in 2 Kings (17. 4 ; 25. 27), and in Isaiah (42. 7) : ^To open
blind eyes, to bring the prisoner (assir) from the masger,
the dwellers in darkness (yoskebe koshek) from the bet-kele\'
Besides these undoubted names for prison, the Au-
thorized Version gives prison-house as the rendering of
bet ha-mahpeket. King Asa being wroth with Hanani,
the seer (rdeh) put him into the bet ha-mahpeket (prison-
house) (2 Chron. 16. 10).
When Pashhur, the priest, was angered with Jeremiah
for his prophecies, he put him in the mahpeket by the upper
Benjamin-gate (Jer. 20. 2). A. V. here renders not ' prison',
but ' stocks \
The word occurs but once more. Shemaiah, the
Nehelamite, who prophesied in Babylon in a sense con-
trary to Jeremiah's prophecies at Jerusalem, wrote to the
priest in the latter city to put Jeremiah in the mahpeket
and in the sinok (Jer. 29. 26), that being the proper place
for a meshiiggOL (madman) who prophesies.
This mode of branding a prophet whose utterances are
displeasing was not a new thing. Hosea (9. 7), reproaching
his age, charges them with calling the nabi a fool (ewil)
and the inspired man {ish ha-ruah) a madman {meshuggcL),
And even in our own day the same phenomenon occurs.
A statesman who advocates measures we do not like is
often called a paranoiac.
The fact is clear that the mahpeket is spoken of only
in connexion with prophets whose utterances are distaste-
THE ANCIENT HEBREW LAW OF HOMICIDE 133
ful to those in power, and who are by the latter branded
as madmen. The conclusion would seem to be that the
bet ha-mahpeket was a place for the detention of lunatics,
rather than a house of punishment for criminals. Exactly
what sinok means is doubtful. A.V. renders 'the stocks',
but as the word occurs but this once, we can be certain
only that it means some place or instrument of restraint.
The common notion that the ancients had no separate
institutions for the sick may be questionable. The obscure
text (2 Sam. 5. 6, 8), which describes the capture by David
of the fortress of Jebus, speaks of the Jebusites' defiant cry
to David that unless he could reach the sinnor and capture
the blind and the lame, he would never enter the place.
The sinnor was apparently built on the highest point of
what was afterwards the city of David, and the inference
is reasonable that it was a place where the blind and the
lame were kept. It may be that the sinnok of Jeremiah
and the minor of Samuel are not totally unrelated.
Whether the account was historically accurate or was
merely legendary by way of explaining the origin of the
later law that ' the blind and the lame shall not enter the
temple ' i^iwer u-piseah la yabo el-ha-bayit : % Sam. 5. 8 ;
cp. Lev. %\. 18), is a question. In any event, the narrative
seems to indicate familiarity with the idea of segregating
persons afflicted with certain infirmities.
There is probably still another name for prison, though
the translators have hitherto not recognized it. It is bet
ha-asnppim (1 Chron. 26. 16). The Authorized Version
takes asuppim for a man's name, while the Revised Version
renders ' the storehouse '.
Sufficient regard has not been paid to the instances
134 THE ANCIENT HEBREW LAW OF HOMICIDE
in which asaph means * to imprison '. Joseph put his
brothers {zva-yeesoph) into mishmar for three days (Gen.
42. 17).
As prisoners are imprisoned, they will be imprisoned
in a dungeon, will be shut up in a jail {vue-ussephu asephah
assir ''al-bor^ we-suggeru ^al-masger) (Isa. 24. 22).
That there was in Jerusalem a house of detention
(which we would call a police station), to which persons
arrested for trivial offences were consigned, would appear
from certain passages in the Song of Songs, and this may
have been the puzzling bet ha-asuppim of i Chron. 26. 16.
When the lady of the song dreamed that she went forth
by night to look after her beloved, she found him not,
but encountered unsympathetic policemen on their beats
(shomerim ha-sobebim ba-ir)^ who arrested her {mesa'uni).
She was, however, soon released {kimat sheabarti mehem)
(Song of Songs 3. 3, 4).
The current translations do not say ' they arrested her ',
but give the rendering ' they found ' her, on the theory
that masa\ which usually means to find, does so in this
instance. The word also has the meanings to catch, to
arrest, to acquire, to take or receive. A burglar caught
in the act (Exod. 22. i (2)), and a thief caught after the
act, are both yimmase' (Exod. 22. 6, 7 (7, 8)). The men
who caught and jailed the Sabbath-breaker were moseim,
wa-yimseu (Num. 15. 32, 33).
The booty acquired in war is mascL (Num. 31. 50).
All that a man has acquired (his whole estate) is yimmase
(Deut. 21. 17).
Here are other instances :
If a man catch (yimsa) his enemy, will he let him go ?
(i Sam. 24. 19).
THE ANCIENT HEBREW LAW OF HOMICIDE 135
They caught {wayitnseu) an Egyptian and brought him
to David (i Sam. 30. 11).
Was Israel caught {nimsd) among thieves? (Jer. 48. 27).
I will surrender (mamst) them each unto his neighbour's
hand (Zech. 11. 6).
If the thief be caught {we-nimsa), he must pay seven-
fold (Prov. 6. 31).
And he saith : Do not lower him into the pit. I have
taken ransom {masa'ti kofer) (Job ^'^. 24).
In the Canticles, therefore, the lady dreams that the
police arrest her, but do not detain her long (3. 3, 4). In
her next dream, however, she is not so fortunate. The
policemen not only arrest her, but beat and wound her,
and give her in charge to the policemen of the wall (shomere
ha-.homot)^ who use her roughly, rending her dainty
veil or mantle (5. 7). One may well believe that the
policemen of the wall had a station to which the police-
men arresting persons whom they considered disorderly,
took their prisoners. At the station the prisoners were
of course examined, and any endeavour to avoid identifi-
cation by covering the head or face with veil or mantle,
would result in damage to the garment.
That the walls of cities were thoroughly policed, and
that they had houses built on them, is certain.
I have appointed shomerim upon thy walls, O Jerusalem,
who will not be inactive {lo yeheshu) by day or by night
(Isa. 62. 6).
When Rabshakeh shouted the menaces of Assyria to
the ministers of the king of Judah, the latter prayed him
to speak in the Aramaic tongue, so that those on the
wall would not understand. Rabshakeh, however, rudely
insisted on addressing his menacing words to the yoshehim
136 THE ANCIENT HEBREW LAW OF HOMICIDE
on the wall, their purport showing that he looked upon
them, not as a rabble of idlers, but as having authority
to influence Hezekiah's actions (i Kings 18. 27 ; Isa. ^6. 12).
We may, therefore, fairly conclude that the wall of
Jerusalem had a police station to which the shonieriin
brought their prisoners, who were tried by the yoshebim
there sitting. Such police courts are not otherwise un-
known. There was such a court in one of the prisons
in the city itself, where the sale of certain land in Anathoth
to Jeremiah was duly acknowledged before the yoshebim
that sat in the prison court (Jer. 32. 12).
Whether the lady of the Canticles was or was not in
the police station of her dream-city, is, after all, of no
great importance. When we remember that there are
at least eight acknowledged names for prison in the
Hebrew language, it is no longer to be doubted that the
prison was an institution of which everybody had know-
ledge. Indeed, in the two capital cases for which there
was no precedent, and which puzzled Moses and the
''Edah^ the accused were both imprisoned pending the
determination of the issue (Lev. 24. 12 ; Num. 15. 34).
Assuming, then, that imprisonment (deprivation of
liberty) was well known to the ancient Hebrews as a mode
of preliminary or final punishment, the question arises
whether the Exodus Code provides for its imposition.
That the loss of liberty was known to the Code would
appear from the provision (21. 13) for a makoin, to which
one guilty of manslaughter would go. This certainly
means that the defendant could not stay at home, that he
would have to go to an appointed place and live there.
This is not a bad definition of a state-prison, however
the details of its management may differ from those of
THE ANCIENT HEBREW LAW OF HOMICIDE 137
analogous modern institutions. That the separated city
of Deuteronomy and the 'ir miklat of Numbers, which
succeeded the makoin^ were prison-cities, we think has
been demonstrated. It is not, therefore, difficult to believe
that a person whose offence was an inferior kind of man-
slaughter, would, as a punishment, be deprived of his
liberty for a time.
The gdel ha-dam and the Vr miklat both ceased by
the time of Jehoshaphat. Shofetim and shoterim, federal
appointees, were placed in each canton (ir). If there had
been no prisons before, they became indispensable then.
The evidence adduced warrants the conclusion that they
were not a sudden invention. The tradition implied in
the multiple names for the institution, is perhaps better
evidence than a direct written statement would be.
In this connexion it is pertinent to quote once more
the Proverb (Prov. ij8. 1 7) :
A man oppressed by blood-guilt must go to prison.
Let no man stay him.
The translation here given is not that of the versions,
all of which fail to perceive that the word bor in the text
means prison, being used in that sense in Exodus (12. 29),
bylsaiah (24.22)5 and by Jeremiah (37.16; 38.6,7,9,10,11,13).
So read, it is a popular legal maxim, just as if we would
say : Never be bail for a murderer. Indeed, the Septuagint
comes very near to adopting this as the translation.
On the whole, it is probable that the man whose
slave died under his rod was punished by imprisonment,
and that this is what is meant by nakom yinnakem.
Before closing the investigation, a word should be said
about the passages in Genesis bearing on the subject of
homicide (Gen. 4. 8-16; 9. 5, 6). They are, as has been
138 THE ANCIENT HEBREW LAW OF HOMICIDE
said, no part of the legal literature. Cain slays his brother,
perhaps in the course of a heated argument. So put, the
offence was, according to the law of Exodus and the rest,
mere manslaughter. The punishment decreed is that he
can no longer remain in the land where the offence was
committed. He must leave his home and live elsewhere.
The terrors of exile are greater than he can bear, and
JHVH sets a mark on him which will diminish its perils.
The sentence, however, is not modified. Cain left and
dwelt in the land of Nod to the east of Eden.
In God's instruction to Noah and his sons after the
Deluge, homicide is dwelt upon. He who kills a man
must answer for it. Even a beast must answer for the
blood of a man. And the whole community is responsible
for bloodshed {mi-yad ish ahiw edrosh et-nefesh ha-adam).
And then the general principle is laid down : Whoso
sheddeth man's blood (shofek dam ha-adam), by man shall
his blood be shed.
In all this there is nothing to run counter to the Hebrew
law of homicide as we have explained it. The words
shofek dam may be taken in either one of two senses.
They may refer to wilful murder, which must be punished
by death, or the principle announced may have no reference
whatever to human law. The seer, pondering on the
problems of the world, may reflect that bloodshed, whether
from malice or by misadventure, always brings misfortune
in its train. The Talmud has the same philosophy : With
what measure ye mete, so shall it be meted unto you
(Sotah 8 b). God's justice is measure for measure {middah
ke-neged middah) (Sanhed. 90 a). And Shakespeare more
than once utters a similar thought. In his Measure for
Measure he makes the Duke say :
THE ANCIENT HEBREW LAW OF HOMICIDE 139
' The very mercy of the law cries out
Most audible, even from his proper tongue,
An Angelo for Claudio, death for death,
Haste still pays haste and leisure answers leisure,
Like doth quit like, and measure still for measure.*
{Measure for Measure^ Act 5, Scene 1.)
And in the third part of Henry VI (Act 2, Scene 6), the
Earl of Warwick speaks :
' From off the gates of York fetch down the head,
Your father's head, which Clifford placed there.
Instead whereof, let this supply the room ;
Measure for measure must be answered.'
Whether the passages be legal or philosophical, or a
mixture of both, the law is always kept in view. That
a beast must answer with its life for the blood of man,
is the express provision of the statute (Exod. 31. ^^9, 32).
That the whole community incurs blood-guilt when one
man murders another, has, we think, been proved in the
second lecture. That the perpetrator himself must suffer
is a thing of course.
One fact should, however^ be kept in mind. Shofek
dam was rather a literary form than a legal term. Isaiah
so uses it in describing the general decadence of morals
(Isa. 59. 7) ; Jeremiah does the same (Jer. 7. 6 ; 22. 3, 17),
as does Joel (4. (3). 1 9). This use has even become proverbial
(Prov. I. 16; 6. 17).
We have now reached the end of our inquiry, and it
remains for us to give a brief summary of its results.
About 1280 B.C. Israel, under the leadership of Joshua,
crossed Jordan to enter upon the conquest of Canaan.
The conflict thus precipitated was not merely physical ;
140 THE ANCIENT HEBREW LAW OF HOMICIDE
it was in a greater degree political or social, and moral or
religious. Two antagonistic systems of life were facing
each other. The Canaanites represented the antique
civilization of Western Asia ; they had cruel gods and
cruel laws, despotism prevailed, slavery was the corner-
stone of their institutions. The Hebrews, on the other
hand, held that freedom was the true basis of a state,
and law and justice its purpose. In their scheme despotism
had no place. The chiefs of the state, by whatever name
known, could not hold office without the assent of the
people, nor could they rule by mere will or caprice, but
by law.
The Hebrews finally triumphed, though the contest
was long and bitter. By the year 1050, a fairly settled
commonwealth had been established under the rule of
the priest-shophet EH. He was succeeded by Samuel,
in whose time the headship of the state was transferred
to a king, Saul of the tribe of Benjamin {c. 1020 B.C.).
It was not, however, until a quarter of a century later
that Israel was thoroughly united under the reign of
David.
During the three centuries between the crossing of
Jordan and the hegemony of David, the state was being
slowly cemented. The numerous city-kingdoms into which
it was divided at the conquest, were deprived of their kings
and converted into cantons or counties of the state. These
were called ^artin (cities) and were governed by cantonal
councils called ;sikne ha-ir. To these were confided
administrative and judicial powers, which were to be
exercised in harmony with the federal constitution and
laws. The better to effect this purpose, Levites and
nebiini^ agents of the central government, visited the
THE ANCIENT HEBREW LAW OF HOMICIDE 141
several cantons for the purpose of instructing and other-
wise aiding the local councils in their work.
These measures, however, did not prove adequate. The
subtle influence of native customs and ideas affected the
cantons, especially those in the remote districts. The
worship of JHVH w^as neither orthodox nor exclusive.
Canaanite ideas, religious and legal, were absorbed, and
a hybrid system resulted, which threatened to imperil
church and state.
In course of time, certain branches of jurisdiction were
withdrawn from the local councils and assumed by the
central government. Homicide was not. at first, one of
these. It was at a later period that the conflict con-
cerning the law of homicide became acute.
We do not know by direct evidence what the Canaanite
law on this subject was. There is, however, indirect
evidence. The laws of the Babylonian Hammurabi
{c. 2250 B.C.) are now accessible to us, and from them
may be derived a fair estimate of the legal notions prevalent
in Western Asia at that early period. The publication,
it is true, antedated the crossing of the Jordan by a
thousand years, and it might fairly be supposed that
they had become, in great part, outworn. Before passing
judgement on this point, we must remember that fifteen
hundred years after their publication, they were still studied
in Assyria, and five hundred years after that were made a
text-book in the Babylonian schools. This shows, at
leastj that the leading principles of the Code were still
accepted, however changed it may have been in some
of its details. It is true that we have no direct knowledge
that the people of Canaan ever accepted this Code. The
intrinsic probability that it influenced them is, however,
142 THE ANCIENT HEBREW LAW OF HOMICIDE
considerable. Moreover, there are certain Canaanite
admixtures in the Torah, which have ah-eady been dwelt
upon, which seem to point directly to the Hammurabi
Code.
Our other indirect evidence is the Torah. We know
its legal principles, and when we find them in energetic
conflict with hostile principles, it is fair to conclude that
the latter are derived from the Canaanite law.
Guided by these helps, we infer that by the Canaanite
law of homicide, the killing of a man was not a crime
cognizable by the state, but a trespass, which gave the
family of the deceased a right to redress. There was no
inquiry as to the motive, and there were no degrees of
liability. This absolute right of redress in prehistoric
times was the right to kill the perpetrator or an equally
important member of his family. When the perpetrator
was killed, a right accrued to his family to seek redress,
and so it went on in a continuing series. This state of
affairs we call blood-feud or vendetta.
When the Hebrews entered Palestine, this stage had
long been passed by the Canaanites. While the blood-feud
persisted in theory, it was rendered practically nugatory
by the custom of compounding the trespass for money in-
stead of blood. Such money payment was called kofer, our
English ' wergild '. The procedure apparently was some-
thing of this fashion : The bereaved family impleaded the
slayer before the zikne ha-ir. The only question before
them was whether the accused killed the man ; the how
or why mattered not. If he was condemned, the repre-
sentative or go el of the family received a legal warrant
to kill him, unless the matter should be properly adjusted.
If there was to be chaffering about terms, the culprit
THE ANCIENT HEBREW LAW OF HOMICIDE 143
sought sanctuary in a makom, probably the capital city of
his */r, though there is reason to believe that a makom in
any other '/r would have availed as a safe place of refuge.
From this vantage-point the bargaining was conducted,
the makom-'^YiQSt being the most likely and convenient
intermediary. Unless the culprit and his family were
very poor, the matter was usually adjusted. The go'el
who represented the family, was naturally interested in
improving their estate, since, if they came to want, they
would look to him for help. The 7nakom-pnGst of course
expected an offering for his makom, if he were honest, and
if the reverse, a honorarium for his services would not have
been unwelcome. These were all the parties concerned, as
the state took no cognizance of the crime.
With this law the Hebrew law came in conflict. It
declared that homicide could never be a trespass (a mere
private injury). It was an offence against God and the
state, and its gravity in this aspect was such that all minor
interests like those of the family, were wiped out and
annulled. The sanctity of human life was the great
principle, and it had to be applied thoroughly. Its benefits
were accorded to the defence, as well as to the common-
wealth. Killing was not necessarily murder. It might
have been due to casualty, to misadventure, to an un-
thinking blow given in hot blood. In such cases it was
ranked as manslaughter, for which the punishment was
internment away from home in a makom^ or later in a
separated city, still later in an */r miklat, and finally in
a common prison. When the killing was with intent,
with malice prepense, it was murder, and the sole penalty
was death.
With such principles kofer was irreconcilable. No
144 THE ANCIENT HEBREW LAW OF HOMICIDE
guilty man could escape by its means. If a murderer, he
must die ; if a manslayer, he must suffer segregation.
Money could not buy off either penalty.
The Canaanite law and the Hebrew law were thus in
crass opposition. Use and wont are powerful forces.
The zikiie ha-ir were affected by them, and murder must
often have gone unpunished, save by the enforcement of
money damages. The federal legates (Levites and nebzini)
doubtless secured some measure of respect for the law.
In the turbulent times, before the throne of David became
secure, this was probably all that could be accomplished.
That great warrior-king, after a life of turbulence, saw
clearly that what his kingdom needed was rest. In his
solemn charge to his successor, he declared that the word
of JHVH had come to him, announcing a son who should
be a man of rest (ish menuhah), in whose days there
should be peace and quietness (shaloin wa-sheket) in Israel
(i Chron. 22. 8, 9).
And Solomon cherished this ideal. So long as the
powerful barons could murder for money, there would
be no peace in the land. Then began the earnest and
determined course of law reform which we have en-
deavoured to describe.
The first step was the abolition of the right of sanctuary.
As the go^el could now drag the murderer from the altar,
there was no opportunity for protracted negotiation. The
go el's demands, however ruinous, would have to be com-
plied with. However well designed the measure, it did
not accomplish its purpose. An ingenious mako^n-^nQsty
an indifferent or perhaps friendly zikne ha-ir council, and
a go'el keener for money than for blood, could easily
manage to defeat the purpose of the government.
THE ANCIENT HEBREW LAW OF HOMICIDE 145
The next step was more drastic. The makom with its
priest, and the family go el were all eliminated. The right
of sanctuary for homicide was done away with. A new
federal officer, the go el ha-dam^ was sent to each canton
to watch the proceedings and to receive the death-warrant
for execution from the zikne ha-ir. Separated cities were
fixed upon as places to which the convicted murderer
would go for his appeal, and if he was a mere manslayer
to serve a term.
In this arrangement there was but one weakness. The
separated cities had their zikne ha-ir who were in friendly
relations with many other local councils, and who, more-
over, were not free from the taint of Canaanite assimilation.
It would appear that this statute was often evaded by
the obstinate adherence of the people to the practice
of kofer^ sometimes in murder and often in manslaughter.
There seemed but one way to remove the difficulty and
to assure the execution of untainted federal law.
This was the course pursued : Forty-eight cities were
selected, jurisdiction over which was to be abandoned by
the respective cantons, and ceded to the federal govern-
ment. These were the Levitical cities, inhabited by
persons whose allegiance to the federal government and
its laws was unquestionable. From among these the ''are
miklat (detention-cities) were selected. The zikne ha-ir
of these cities were, of course, Levites who were capable
and willing to enforce the Hebrew law. A national court
(the *Edah), sitting at Jerusalem, heard the appeals. In
this system every weakness was eliminated, except only
that the zikne ha-ir of the several cantons were still the
court of first instance. True, they had federal assessors
(Levites, Kohanim) and a federal sheriff (the^i?V/ ha-dam)^
S. L
146 THE ANCIENT HEBREW LAW OF HOMICIDE
and one might fairly believe that in such circumstances
they could not find a loophole to evade the enforcement
of the federal law, especially as there was now an express
statute forbidding kofer^ both in murder and in man-
slaughter cases.
It is, however, this statute which gives the clue to the
defect in the system. The common people, the family
go el and the zikne ha-ir were still favourable to the
practice of compounding the felony of homicide for money.
That the system, carefully guarded as it was, did not
perfectly succeed, may be taken for granted. In more
modern times and nearer our own homes, we are not
totally free of the sentiment which prefers large damages
to convictions for manslaughter. It was Jehoshaphat who
finally tore up hofer by the roots. I have in a previous
lecture described how he abolished the jurisdiction of the
zihie ha-ir in cases of homicide, by establishing federal
courts and sheriffs in every canton, with a supreme appel-
late court at Jerusalem.
Thus was the final victory for Hebrew law won after
a protracted contest lasting a century. At last, about
850 B.C., every man knew that the element of civil
damages or private satisfaction was eliminated from
homicide cases, and that the state alone had jurisdiction
of this high crime.
And now one final word. I am well aware that there
is room to question many of the definitions suggested
and hypotheses propounded in these lectures. It would
be unreasonable to hope for ready acquiescence in views
that run counter to inherited opinions. Many will think
the whole scheme of positing a life and death contest
THE ANCIENT HEBREW LAW OF HOMICIDE 147
between Canaanism and Hebraism audacious ; more, per-
haps, will look scornfully upon the endeavour to date one
of its most important manifestations, and to trace its
progress. With them I have no quarrel. The endeavour
has been to look at the facts honestly and without
prejudice.
If the labour, which has been one of love, helps an
earnest student, here and there, to a better understanding
of the Hebrew law of homicide, makes clearer the function
and short duration of the "ir miklat, strips the grisly features
from the Avenger of the Blood, and moves the Hebrew
lex talionis from the solid ground of history towards the
shifting sands of fable, it will have accomplished its
purpose.
L 2
NOTE
The statement on page 45 concerning the alah is too
scanty to explain the meaning of Solomon's prayer.
Originally the word probably meant a curse. Other
meanings however developed.
When a master charged his servant with a special duty
he made him solemnly swear to perform it. This oath is
called a shehtah. Attached to this was the penalty for
disregarding the oath. This was the curse or alah de-
nounced by the master against the servant should he
prove recreant to his duty. Of this meaning of alah we
have the classical example in Abraham's charge to Eliezer
(Gen. 24. 2-41).
So when two parties made a covenant or treaty {berit)
the penal feature of the transaction was the alah. An
example of this is found in the treaty between Isaac and
Abimelech (Gen. 26. 28-31). Other instances of a berit
with alah are to be found in Deut. 29. 12-28 and in Jer. 34.
13-22, though in the latter the word alah is not used.
Here, however, we are specially concerned with the
juridical alah. In its oldest form it seeks to procure a
confession from a woman charged with adultery which
cannot be proved. The procedure is given in full detail in
Num. 5. 12-31.
The later development of the alah is that when a tort
has been committed and the perpetrator is unknown either
to the injured party or to the authorities, there is publicly
proclaimed in the temple what we would call a subpoena
to confess or to testify. This is an adjuration to the guilty
party to come forward and confess or to any witness to
come forward and testify. As the circumstances prevent
the service of such a subpoena upon any known person,
it is, as it were, discharged into the community by procla-
mation (kol alah). The imposition of the penalty or curse
(alah) must of necessity be left to Heaven. The passages
bearing on this subject are i Kings 8. 31, 32 ; 2 Chron. 6,
22, 23 ; Lev. 5. 1-4 ; Prov. 29. 24.
148
BIBLICAL PASSAGES CONSIDERED
Genesis
PAGE
Exodus
PAGE
4. 8-16 ... 137
20. 2
III
4. 15
61
20. 7
. 104
4. 24
61
20. 13
21
9-5 .
• 33» 57
20. 22
37
9-5, 6
I
I3» 137
21. I
37
10. 9
38
21. 2
III
12.6
41
21.5,6 .
112
13-3
41
21.6
37
13. 4
41
21. 12-14, 20-32
• 22-3
17. 14
126
21. 12-14
. 36, 40
24. 2-41
148
21. 12
113, 126
24. 41
. 104
21.12,16,17,19,20,22 129
25. 27, 28
38
21. 13 .
. 136
26. 28-31
148
21. 14
• 37, 51
27- 3' 5, 7j 33
38
21. 16
112
28. 11-19
41
21. 18
• 133
39. 20, 21, 22, i
23 •
131
21. 18, 19, 20 .
122
40. 3, 4, 5, 7
131
21. 18, 19, 22 .
121
41. 10
131
21. 19
126
42. 17, 19
131
21.20 . 114,
126, 128
42.17
134
21. 20-21 .
. 36, 61
48. 16
59
21. 20, 21, 26, 27, 32 109
21.21,23-5 .
130
Exodus
21. 22
37, 123
4. 23-6 .
2
21. 22-5 . . 54,
119,124
4. 29-30
8
21. 28-32.
104
5.3 •
. 83
21. 28
. 104
6. 6 .
60
21. 29
52
10. 23
33
21. 29, 32.
. 139
12. 15-19
126, 127
21. 30
• 37, 51
12. 21
8
22. I (2) . . 23
, 34, 134
12. 29
'Sh 137
22. 2 (3) .
23
15. 13 .
60
22. 3
. 126
13- 3» 14 •
III
22. 6, 7 (7, 8) .
• 134
15- 13 .
60
22.8(9) . .
37, 104
16. 15
33
22. 27 (28)
37
17.6
8
23- 2, 3, 6, 7, 8, 9
97
19. 7
.
8 1
23- 7
99, 103
349
I50
THE ANCIENT HEBREW LAW OF HOMICIDE
Exodus
PAGE
Numbers
PAGE
23. 8 . .
104
15-2
27
30- 33, 38
126
15- 24, 29, 30 .
82
30. 38 .
• 127
15. 30, 31
. 126
31' 14, 15
126, 127
15. 32-6 .
. 9, 128
15.32,33-
. 134
Leviticus
15- 34 .
131, 136
4. 3, 13, 22, 27.
81
15. 35, 36-
• 34, 83
5. 1-4
. 148
18. 20, 23, 24 .
71
5. 15
81
19. 13, 20.
126, 127
7. 20, 21, 25, 2)
r 126, 127
26. 62
71
17- 4, 9> 14
126, 127
27. i-ii .
9
17. 13 .
• 38
31. 2, 3 .
61
18. 29
126
31. 10
27
19. 5-8 .
126, 127
31. 19 .
30
19. 13, 20
. 126
31. 50 •
• 134
19. II
. 98
35. 11-33.
• 25-7
19. 15 .
97
35. 12, 24, 17 .
73
19. 16, 17
. 98
35. 16-19, 20,
21 . 84
19. 18
61
35. 16-27.
. 83
19. 20
. 126
35. 16, 21-3
• 85
19- 35 .
. 98, 99
35. 16, 17, 18
• 113
20. 9,11,12,13,
16,27 58
35- 24-37
86
20. 5, 17, 18 .
. 126
35. 26, 27, 30
. 87
20. 18
. 127
35. 25
82
21. 18
77
35- 27 .
34
22. 3
126, 127
35- 28, 31-4
74
22, 23
. 76
35- 30 .
loi, 113
23. 21, 31.
27
35- 33.34-
57
24. 10-16.
9
36. I-IO .
9
24. 10-23.
89, 120
24. 12
131. 136
Deuteronomy
24. 14
. . 83
I. 16, 17 .
98, Id
24. 14, 23
34
4. 41-3 .
23-4, 63
24. 17, 21
29, 113
5.6 . .
III
24. 19
. 123
5. II
104
25. 10
III
6.21
III
25- 24, 25, 33,
49 . 60
7.8. .
III
25. 46
33
8. 14
III
26. 13
III
10. 9
71
10. 17, 18
. . 98
Numbers
12. 2, 3 .
41
6- 12-31 .
148
12. 12
72
6.3. .
51
13.6(5), II (i<
3) .III
9- 13
126, 127
14. 16
. 105
14. 4
33
14. 27, 29
72
THE ANCIENT HEBREW LAW OF HOMICIDE
151
Deuteronomy
PAGE
Joshua
page
16. 18-20
98
7. 25
• 34, 83
16. 18
95,
126
9. 4 . .
. 38
17.6 .
87
10. 13
61
17. 6, 7 .
lOI
13- 14, 33
72
17- 8-13 .
97
14. 3
72
17. 12
99
20. 2-9 .
. 28, 88
17. 12, 13
38
20. 3
74, 113
18. I, 2 .
72
20. 6, 9 .
75
18. 20, 22
38
21. 18
73
19. 3-15 •
24-5
19. 6
69
Judges
19. 10
33, 67,
103
6. 30
83, lOI
19. II
113
8. 21
. 83
19. 12
. .' 68, 75
14. 4
39
19. 13
33
15-7
61, 129
19. 15
' 68,*87,
lOI
15. 12
84
19. 16-21
120
16. 21, 25
• 131
21. 1-9 .
32,51,57,90
16. 28
61, 129
21.5
52
18. 25 .
. 84
21.8
104
21.17 .
134
I Samuel
21. 21
83
2. 18, 35 .
49
22. 8
58
3. I, 20 .
49
22. 18
126,
130
8. 3 . . .
50
22. 21
83.
lOI
12. 1-5 .
49
22. 24
83
14.38-42.
lOI
24. 5
104
19. 2
. 64
24. 12, 13
51
22. 17, 18
84
24. 16, 17
98
24. II
. 38
25. I
99
24. 19
. 134
25. 2, 3 . 1
13' 114,
126
25. 20
.. 64
25. I, 2 .
104
26. 21
81
25. II, 12
124
30. II
. 135
27. 15-24
63
27. 25 .
99
2 Samuel
29. 12-28
148
I. 15
84
32. 35, 41
61
2. 8-23 .
31
32. 43 •
62
3. 21, 22, 23-7.
31
33- 12
45
5. 6, 8 .
7. 14
. 133
. 113
Joshua
12. 12
64
2. 17-20 .
104
12. 24
45
5. 2-9, 10-12 .
.
6
14. 1-24 .
91
7. 14-18 .
.
lOI
14. 7, n •
94
7. 24
.
34
14. 9
104
152
THE ANCIENT HEBREW LAW OF HOMICIDE
2 Samuel
PAGE
Isaiah
PAGE
14. 25, 26
43
30. 16
79
15. I
43
33- 15 •
. . 80
15.4
104
34. 8
61
20. 18
92
35- 4
61
22. 48
61
36. 12
. 136
42. 7
. 131, 132
I Kings
47- 3
61
2. 5 .
• 30, 31
59-7
• 139
2.25,29,31,32,
34, 46 84
59- 17
61
2. 26
72
59- 19
79
2. 28, 29 .
79
61. 2
61
2- 33
• 58
62. 6
. 133
3. 9, 12, 28
44
63. 4-9 .
59
4. .
• 44, 67
63.4
60
5. 5 (4. 25)
44
7.7.
44
Jeremiah
8. 21
44
7.6 . .
• 139
8. 31, 32 .
. 148
II. 20
61
8.32 .
45, 104
13. 14 .
33
16. II
60
20. 2
. 132
18. 27
. 136
20. 10, 12
61
21. 10, 13
70
22. 3,17 .
139
21. 10, 18
102
25. 26
33
22. 27
. 132
26. 15
57
29. 26
. 132
2 Kings
30. II
104
5. 1-8 .
40
32. 2, 8, 12
• 131
7.6 . .
33
32. 7, 8 .
60
9- 3» 10 .
. 78
32. 10, 12, 25
102
9. 7.
62, 129
32. 12 .
136
14. 6
. 105
33-11 .
• 131
17-4
. 132
34. 13, 14, 17, i
22 III, 148
25, 27 .
• 132
37-4
. 132
37. 15
. 131
Isaiah
37- 15. 18
. 132
I. 24
61
37. 16 .
•• 131,137
5. 13
. . 63
37. 21
. 131
5. 23
. 104
38.6,7,9,10,11,
13 131,137
8. 2 .
102
38. 6, 13, 28
• 131
10. 3
, . 78
39- 14, 15
• 131
13. II
. . 38
46. 10
61, 129
20. 6
. . 78
46. 28
104
24. 22
I3i>i34, 137
48. 27 .
135
28.7
. . 81
50- 15 •
129
28. 20
77
50. 28 .
61
THE ANCIENT HEBREW LAW OF HOMICIDE
153
Jeremiah
PAGE
51.6
61
51.36 .
61
129
52. II .
131
52. 31 •
132
EZEKIEL
4. 17
33
6. 6 .
27
18. 1-32 .
107
24. 8 . .
61
24. 23
33
25. 12, 14, 15, 17
61
25. 15 .
129
33- 30 •
33
36. 23, 24
107
37. 1-14 .
107
47. 14
33
HOSEA
9. 7 .
132
Joel
4. 2, 12 .
100
4. (3) 19 •
139
4.(3)21 .
57
104
Amos
2. 6 .
5h
104
2. 7, 8, 12
51
5. 10, 12, 15 .
51
5. 12
49,
104
5-19
84
7. 10, 12 .
50
MiCAH
3. II
50
6. 4 .
III
Nahum
I. 2 .
61
I. 3 .
104
Haggai
2. 22 .
33
26
Zechariah
7. 9, 10
II. 6
Malachi
2. 10
Psalms
39- 4 (3)
94. 21
Proverbs
I. 4 .
I. 16
4- 23
6. 17
6. 31
6. 34
8. 5, 12
13. 24
17- 15, 23
17. 23
18.5, 17
19- 5, 9
22. 15
23. 13
24. 24
28. 17
29. 15
29. 24
Job
9. 20
33. 24
34. 17
36. 12
Song of Songs
3. 3M
5-7-
Ruth
2. 20
3. 9» 12, 13
4. i-io, 14
79» I
page
33
135
33
69
104
38
139
131
139
135
61
38
113
104
50
104
104
113
"3
104
31, 137
113
148
104
135
104
63
134, 135
• 135
60
60
60
154
THE ANCIENT HEBREW LAW OF HOMICIDE
Lamentations
page
I Chronicles
page
4. i8 . .
. 38
22. 8, 9 .
. 144
26. 16
133, 134
ECCLESIASTES
4. 14
>3i
2 Chronicles
5.6 . .
82
6. 22, 23 .
. 148
6.23
104
Esther
16. 10
132
8. 13 . .
. .29
17.2
17.7
95
95, 100
Ezra
17.8
17. 9
96, 100
96
7. 12-26 .
Nehemiah
. 125
18. 26
19.4
19- 5, 8
. 132
99
. 96
3-25
• 131
25.4
• 105
5- 7 .
33
12. 39 .
• 131
Talmud Babli
Sotah 8b.
. 138
I Chronicles
Sanhedrin 52 b.
. 129
22. 6-9 .
45
Sanhedrin
90 a .
. 138
INDEX
Abner . . . . ' .
Absalom ....
Achan, case of . . .
alah (oath, curse, subpoena) .
Amercement
'am ha-ares (federal high court)
Amos ....
afiah, innah le-yado^ io'anah .
Anathoth (federal prison city)
' anosh ye anesh (punitive damages)
anshe Israel (leading men)
Appeal, Apellate Tribunal
see Supreme Court.
arah (lie in wait) .
arur Code .
Asahel, murder of
ason (miscarriage) .
Battlement for roof
Berit (covenant, treaty)
bet ha-asuppim (prison)
bet ha-bor (prison) .
bet ha-pekudot (prison)
bet ha-kele or keli (prison)
bet ha-surim^ or asur or asirim (prison)
bet ha-sohar (prison)
bet ha-viahpeket (prison or mad house)
bi-bli da at (unwittingly)
^ Blood, prohibited .
Y^ Blood-covenant
Oj31ood-feud .
' see Vendetta Law.
~y^ Blood-guilt .
Bne-Israel
bor (prison) .
Bribe, see shohad.
38,39
63, 64, 65
46, 47, 48,
30> 56, 57, 58, 61, I
. • . 79,
PAGE
30, 31
43' 92, 93
34
45, 148
126
46,81
50
40, 63, 80, 86
72
54, 129
43
67,74,75,96
64, 85
63
31
• 53, 54, 122
58
148
133
131
131
132
131
131
32, 133
, 86, 88
56
2, 3, 6
51, 142
03, 106
73.74
80, 131
74,
I
80
Canaanite Law and Practice
7, 35, 41, ^^^ 99, loi, 102, 104,
109, 121, 124, 125, 130, 140, 141
^56
THE ANCIENT HEBREW LAW OF HOMICIDE
Children suffer for sins of parents
Circumcision
City Kingdoms, see Vr, 'arim.
Class distinction, in law
Covenant at Gilgal
dallim .....
dam^ damim, see Blood-guilt
deme milhamah (war blood)
David ..*...
Death penalty
ehah (enmity)
ebyonim ....
'edah (Federal court) . 34, 73, 75
seat of, in Jerusalem
ElTs Sons ....
Elishah ....
Elohim (tribunal) .
Enslavement
Evidence, law of .
Exile, see kareU
Extradition
Ezra
ezrah (native)
Federal Assessors .
Federal Courts, see "edah.
Federal Delegate .
Federal Law ....
Federal Sheriff, see go* el ha-dam.
be-feid (suddenly)
PAGE
04-107
2,3
23
6
114
29, 30, 31
3^ 92, 93> 140
15, 126
84, 85, 86
114
76,82,83,86,99,120,136,145
82, 88
49
40
37
126
68, 70, 87-8, 1 01-2
. . 67
125
89, 91, 112, 120, 121
145
7>35> 5^ 52, 144
89
85,86
gctal^ defined
^^r, ^^rz>7? (stranger) .73,
Gershom, son of Moses
Gideon's trial
God's hand in human affairs .
go el (family representative) . 52, 55, 56, 60, 66, 142, 143, 144, 146
go' el ha-dam (Federal sheriff) . 55, 56, 58, 59, 60, 62, d^, 66, 67, d'^^
69, 70, 7i» 73, 74, 75, 78, 83, 86, 88, 91, 92, 93, 94, 95,
99, 137, 145
Goring ox 13,16,52,53
59. 60
89, 90, 91, 112, 120, 121
2
lOI
38-40
ham lihho (be in earnest)
69
THE ANCIENT HEBREW LAW OF HOMICIDE I57
PAGE
Hammurabi Code. 2, 4, 6, 10-21, 46, 47, 48, 54, 105, 107, 108,
109. 112, n8, 124, 130, 141, 142
hataft damim (member of blood-covenant guild) . 2, 3
Homicide, state concern
justifiable
by misadventure
in Hammurabi Code
see Manslaughter, Murder.
Imprisonment
'/r, 'arim (city kingdoms)
*ar€ Yehudah
*ir {*are) mtklat (state prison)
83, 86, 87,
'are ha-mtiaddah
ishah hakamah
Ishbosheth .
Jehoshaphat .
Joab
kalat (confine)
karet (banishment)
kofcr (ramom) . 4, 5, 6, 15, 16
65, 68, 71, 74, 99
see wergild,
ko/icfi, kohanim (priest, federal author
32, 42, 48, 55, 56, 57, 58, 143 ^--
29-31. 34
53
11-2 1
. 128, 131, 136
6, 41, 42, 48, 95, 96, 97, 140
95, 96
73. 74, 75. 76, 77. 79, 80, 82,
88, 95, 99. 137, 143, M5' 147
75
92, 93
31
kohcn ha-gadol (High-priest) .
see makom-^x\^%i,
kol alah (proclamation of the alah)
95-9, 100, 146
• 31, 92, 93, 94, 95
76, 77
126-8
37, 48, 49,50,51,52,55,62,
no, 121, 142, 143, 145, 146
ty) • 49, 51, 72, 90, 96, 97,
ICO, 125, 145
73, 76, 86
Levites
see Federal delegate.
lex talionis .
148
71, 72, 140, 144, 145
2, 3, 4, 19, 20, 104, 115-125, 130
mahpekety see bet ha-mahpekei,
makom (ecclesiastical section of Yr). 37, 40, 41, 42, 65, 68, 75, 77,
136, 137, M3
its furnishings 41
makom-Vx\^%\.% 48, 49, 55, 62, 143
>^. Manslaughter, defined 85
y^ kinds of . . 37-4©, 52, 53, 63, 64, 83, 85, 86, 99
Wflftz (arrest) 134
masger (prison) ....... 131
maUarah (prison) 131
viiddah ke-neged middah {ycit'X^yix^ iox xtit^%\xxt) . 138
158
THE ANCIENT HEBREW LAW OF HOMICIDE
>
PAGE
Midian
30
migrash (state territory)
72
mtklat, defined
76-7
mishmar (prison) .
131
viizheah (altar)
40, 4i> 77
moshabot (districts)
27
Murder
37-40, 52, 83, 85, 99
>-^ defined .
64,84-5
Naaman
39> 40
Naboth, case of .
70
nagid (King's minister)
96
nahalah (inheritance)
71-2
naham, see nakam.
nakam (avenge)
59, 60, 61, 62
nakom yiiinakem
. 114, 126, 128, 129-137
naki (once acquitted)
102, 103, 104
nebivn, see Federal deleg
^ates.
nus (hasten) .
. . . . 77-9
Oracle trial .
. 8, 45, 68, 89, loi, 128
'ormah (craftiness) .
37,38,64,84
oyeb, see ebah»
paga\ be-figo (strike)
83,84
pelilim (tribunal) ,
37,54,121
Police .
n^. 136
Police Courts
126
rashd (guilty)
45, 50, 103
Retaliation, law of, see lex talionis.
sadah (lying in wait)
38,63
sediyah .
84,85
saddik (innocent) .
45, 51, 103, 106
Samson
39
Samuel
42, 40
Samuel's Sons
49
Sanction of law .
21
Sanctuary .
. 40, 42, 52, 65, 75, 76, 95, 99, 144
sard (stretch)
77
sarah (apostasy) .
45j68, 120, 121
Scourging
126, 130
sefer (document) .
90
sekirim
114
ba-seier (secretly) .
63
THE ANCIENT HEBREW LAW OF HOMICIDE
shdar (court)
shagah, shagag (err)
bi-shegagah .
shehet (rod) .
shebu'ah (oath)
shem (oracle)
sheroshi (exile)
see karet.
sho/ek dam (murderer)
shohad (bribe)
sirCah (hatred)
sinok (prison)
sinnor, see sinok.
Slavery
Solomon
Subpoena
Supreme Court, in Jerusalem
iamak (receive)
Tekoah, woman of
Torah, written and oral
ulam ha-mishpat (porch for throne)
Vendetta Law . .
see Blood-feud.
Walls, guarded . . . .
War-blood, see deme viilhamah.
wergild . . . . .
see kofer.
Witnesses . . . . .
see Evidence, law of.
yad ramah (wilful)
yaphog lihbo (disbelieve)
yazid (coming presumptuously)
yeham lebabo (earnest, zealous)
yoshebim (magistrates) .
zekenim, zikne ha-ir (elders) . 7,
55, 62, 66, 67, 71, 73, 74
loi, 124, 140, 142, 144,
159
PAGE
51
81
80, 81, 82, 88
113
148
33. 34. 44, 89, 120
129
138, 139
49, 50
84,85
132, 133
36, 107-114
44, 45, 56, 144
148
96, 99
80
93, 104
7, 8,9
44
46, 47, 48, 51, 69
135, 136
3, 4, 5, 6, 47, 48, 50, 121
68, 70, 75, loi, 102
Zipporah
82
70
34, 84
69-70
135-6
32, 35, 41, 42, 46, 48, 51, 52,
, 75, 80, 82, 87, 88, 90, 93, 99,
145, 146
2
l6o THE ANCIENT HEBREW LAW OF HOMICIDE
Hebrew Words Considered (which see) :
alah ; 'am ha-ares ; anah ; 'anosh ye anesh ; anshe Israel ; arah ;
arur ; ason; berit ; bet ha-asuppim ; bet ha-bor ; bet ha-pekudot,
bet ha-kele ; bet ha-surim ; bet ha-sohar ; bet ha-??iahpeket ; bi-bli
ddat ; bor ; dallim ; dam, damwi, deme milhamah ; ebah ; ebyonim;
'edah; ezrah ; be-fetd ; ga'al; go' el; go el ha-dam ; ham libho ;
hatan damim ; *ir, *arim, 'are, Vr miklaU 'are ha-mii addah ; ishah
hakamah ; kalat; karet ; ko/er ; kohen, kohanim, kohen ha-gadol ;
kolalah; mahpeket ; makom ; 7?iasa ; masger ; mat t arah ; middah
ke-neged middah ; viigrash; miklat ; mishmar ; mizbeah; moshabot;
nagid ; nahalah ; naham ; nakam ; nakom yinnakem ; naki; nebiim;
nus ; 'ormah ; oyeb ; pagd ; be-fig'o ; pelilim ; rashd ; sadah,
sediyah ; saddik ; sard ; sarah ; sefer ; sekirim ; ba-seter ; shdar;
shagah, shagag, bi-shegagah ; shebet ; shem; sheroshi ; shofek dam;
shohad ; sin ah; sinok ; sinnor ; tamak ; ulam ha-mishpat ; yad
ramah ; yaphog libbo ; yazid ; yeham lebabo ; yoshebtm ; zekenim,
zikne ha-ir.
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